Vol. 261 No. 2
I move amendment No. 10:
In pages 2 and 3, subsection (3), to delete paragraphs (i) and (ii) and to substitute the following paragraphs:—
"( ) in the case of persons on remand, they are brought before the court to which they were remanded,
( ) in the case of persons sent forward for trial or sentence, they are brought before the court to which they were sent forward and the proceedings in relation to the trial or sentence have concluded, and".
Amendment No. 12 is related and perhaps we could discuss amendments Nos. 10 and 12 together.
The basic purpose of these two amendments is to avoid a situation which could potentially exist under the subsection as drafted, whereby if somebody in military custody is brought before a court and further remanded in custody, it might be that the court would have to remand him to a civil prison in the first instance and that a transfer order would have to be made. His presence in the civil prison would be purely nominal because within a few minutes of his going in, the order would be made to send him back to where he came from and in order to avoid administrative difficulties and possible considerable additional expense in taking a prisoner to the nearest civil prison, we re-worded these two subsections to make that clear.
So far as the first amendment is concerned, the object is to spell out the cases contemplated in the existing provisions at paragraphs (1) and (2) of subsection (3) of section 2. A person brought before a court may be a person brought there on remand or a person sent forward there for trial or on sentence, and in this amendment and the other, the wording we have used is that of section 22 of the Criminal Procedure Act, 1967.
With regard to amendment No. 12, the amendment proposes to authorise and at the same time require a court before whom a person already in military custody is brought to commit that person to military custody for the period of any further remand in custody or for the period of any sentence of imprisonment imposed by the court. The amendment also covers the case where a person already in military custody is sent forward in custody for trial or sentence. Here again the wording follows the wording of section 22 of the Criminal Procedure Act, 1967. The amendment will avoid the situation that would otherwise arise if the court in any of these cases mentioned were to commit the person concerned to prison, thus making it necessary for the Minister for Justice to direct that the person concerned be again transferred to military custody.
I can see the common sense of the change in drafting but I wonder is the Minister getting into a constitutional difficulty in regard to amendment No. 12. It is for the courts to sentence a prisoner to detention and for the courts to impose the penalty, and it is then for the Executive to specify where the sentence shall be served and a matter for the Executive to arrange the transfer within legal limits from one place of detention to another. The Minister is aware of the constitutional habeas corpus actions arising from wrongful detention, due to technical difficulties and the mechanics of the transfer of a prisoner from place to place. It is essentially a matter for the Executive, that is, when the court has finished with the prisoner, but what this amendment seems to imply is that the Executive, or Parliament, through this statute, is giving a direction to the court as to where a person being dealt with by the court is to be sent by that court. In other words, there is a suggestion here that the absolute jurisdiction of the court to order its own affairs is being interfered with, in the sense of the courts being told, "When you get AB, he can only be sent back to military custody" and this to me seems to be dangerous from the constitutional point of view. While I see the common sense in it, to save the Minister subsequently having to make an order and effect a physical transfer, something that could be done if this direction were there, I nevertheless think the Minister would be on safer grounds to let the court make its order as heretofore, the Minister then exercising his administrative powers to make the transfer to the different type of custody.
I understood the Minister to say that when a person was further remanded, he would be momentarily brought to a civil court and then this Act would apply to transfer him to military custody. I would much prefer that the court would facilitate the Government by designating the place of detention for further remand to the only available area. If this is the justification for the military custody in the Curragh, that there is no other place for these prisoners to be sent on remand, surely the courts—I am not certain of the technicalities—would appreciate this point too, if it is to be so. Could not the courts designate further remand to the Curragh? Why must it be the Minister and he alone who is to designate persons to military custody at the Curragh?
I think Deputy Sherwin is a little mixed up. I assume the amendment is for the purpose of doing exactly what the Deputy says, that is, that it will entitle the courts to order a person to be taken back to military custody.
Did not the Minister say that a person would, on further remand, be brought temporarily——
The purpose of the amendment is to avoid that.
The objection that we have and which is affected by a later amendment is that we believe the Minister could have got out of this very easily by designating the prison in which these people are being kept as being a prison under the Prisons Acts, 1826 to 1970. If there is an objection to this being done I would like the Minister to spell out what is this objection.
If I did that it would not be military custody because the military could not take control of it.
This brings us back to the kernel of the matter. Does the Minister want military custody? If he wants a military detention camp, as the Tánaiste referred to it yesterday, let us hear that.
I can shorten that for the Deputy. I wish to put them somewhere and the only place that I can lay my hands on as of now and in the foreseeable future is the military detention barracks in the middle of the Curragh Camp. I cannot establish it as a civil prison for two reasons: one is that I have not enough staff to cover all the prisons and it at the moment although I am recruiting staff and have been doing so for some months. The second reason is that the Army authorities would find it impossible to operate in a situation in which there was a different authority in the middle of their property. To demonstrate the correctness of the point I am endeavouring to make, I would refer Deputy Tully to what I said earlier in reply to Deputy Clinton regarding the position in Cork where the premises are basically the same as those at the Curragh but these physical and staff difficulties did not arise in the case of Cork because the Cork premises are separate and away from the barracks. In Cork there is only one military barracks while at the Curragh, I understand, there may be as many as half a dozen. There is a sort of general complex of military buildings there and this detention camp is somewhere among those.
The Minister made the mistake of not going to the Curragh and finding out if the position is as he says.
The Army tell me the position and I take it that what they tell me is correct.
Of course, they will put forward their side of the story. While I am not prepared to challenge what the Army have told the Minister, I do not believe he is correct when he says it would not be possible to have a civil prison inside the camp which is not controlled by the military.
Deputy Clinton made the point quite strongly this morning that to do so would put the military in an impossible situation.
Deputy Clinton and I come from the same part of the country but that does not mean that I am his keeper or that he is my keeper. I believe it is possible to have a civil prison within a military camp and perhaps I have more experience of military camps than has either Deputy Clinton or the Minister. The Minister is aware that there are civilians living within these camps but that this does not seem to upset the running of the camps and the overall control remains with the military. I hope I am wrong in this but I have a suspicion that from the beginning the whole idea in this is to make an effort to put certain people into military custody, in other words, this is a matter of internment under a different heading. That is our only objection to the Bill.
The whole terms of the Bill set out clearly that a person can be held in military custody only if he has been sentenced or remanded in custody or sent forward for trial in custody by a court of competent jurisdiction.
The Minister is aware there can be remanding and remanding.
A person can be remanded over and over again without there being any question of military custody. The Deputy has not got the point.
Perhaps the Minister would either stand up and make a speech or remain seated and let me make my contribution.
I was only trying to answer the Deputy's question.
The Minister might answer them when I have finished. I shall be very brief. So far as we are concerned we want to see law and order in the country but we do not wish to allow the Minister or the Government to introduce under any guise a type of imprisonment that would be objectionable to the vast majority of people. So far the Minister has not convinced me that this is not what he wants to do.
Last night, if I interpreted correctly what the Minister said in concluding Second Stage, he indicated that the 40 persons now at the Curragh were those persons who in the opinion of the authorities were responsible for the trouble at Mountjoy.
I said no such thing and I would be careful not to say it.
As I read it the insinuation was that the majority of those at the Curragh were responsible for the rioting at Mountjoy.
The Deputy is treading on dangerous ground because there are certain people, I am not saying where they are now, who will be prosecuted as a result of what happened and the Deputy is going the best way possible about having a certain effect on those prosecutions.
Did not the Minister indicate that it was his anxiety to place those persons responsible for the acts at Mountjoy in a place where they, perhaps, would not be in a position to commit such acts again and that, therefore, if 40 persons named by him were sent to the Curragh, is it not only reasonable that anyone would interpret that the majority of those 40 persons are those that the Minister wishes to have removed from the ordinary civil prisons? What I am suggesting is that these people who will be transferred and others who will be charged by the civil authorities and put on remand would be designated by the Minister to be transferred to the military camp as distinct from any other prison because of their particular affiliations? Is not this the power that the Government are seeking?
So that this point can be clarified may I inquire from the Minister whether it is a fact that the reason he is now transferring a number of prisoners to where they will be under military supervision is because there is no accommodation for them in any other place? In view of that would not the Minister consider sympathetically the question of having supervision at the Curragh carried out by ordinary prison officers? I am sure that the Minister can ascertain from the Minister for Defence that ample living accommodation can be had at the Curragh and that if such accommodation is not available now that it can be made available readily so that the officers concerned could be housed there.
I have a very serious objection to prisoners of any kind being under the supervision of the military authorities. I have already expressed that view today. It would be a considerable easement if the general public could be reassured on this point. Every Member of this House advocates the maintenance of law and order and, if laws are broken, then we all agree there must be a place of detention for law-breakers. My argument is that that place of detention should be under the civil authority and under civil supervision, not the military authority and military supervision. If the Minister will ensure that prisoners are supervised and catered for by the civil prison personnel that will go a long way towards alleviating public unease. There is a feeling that this is the thin end of the wedge to the opening of internment camps. It is not the responsibility of the military to be in charge of prisoners. The Minister should really take another look at this.
According to the Government, this legislation is designed to cater for an emergency situation. Line 26 stipulates that references to the Minister shall be construed as references to the Minister for Defence. Under subsection (3) the Minister can certify and can direct the transfer to miltary custody of such persons as are specified by him. That action of the Minister applies only to persons presently in custody and not to persons who may be in custody at some future date. Is that so?
No.
Then if, in the opinion of the Minister, such person should be transferred to military custody as distinct from the direction of the courts that the person should be transferred to civilian custody, the Minister will change that direction of the courts and direct that that person be transferred to military custody. There must be some reason for transferring that person to military custody. The point I made earlier that only certain selected people, because of their affiliations, will be transferred to military custody is correct.
What Deputy Sherwin said is correct. With regard to the point made by Deputy Cooney, at the moment the court usually sentences people to some form of detention. It has no option and to that extent there is compulsion on the courts. I do not think this is any different. The purpose is not so much to compel the sentencing of people to military custody as to avoid unnecessary administrative work in physical transfers. I do not think the House need have any concern on that point.
The Minister will agree that, if the court is put in this position, the court will also want to be satisfied that the type of incarceration which will follow will be the same as that which the court can direct at the moment.
Yes. The conditions will be similar. If the powers of the court to send someone to a particular institution are limited to that institution the court can make recommendations to me for the removal of the prisoner elsewhere. That happens frequently. There was a recent case in which a prisoner on the suggestion of the court was actually committed before the governor took formal custody and the result was the fellow got away with it; he was able to serve almost his entire sentence in an ordinary hospital. The same thing would apply here. For that reason I do not think there would be the type of restraint or compulsion that Deputy Cooney fears.
It could happen that a person in military custody would be in a less beneficial atmosphere than a person in civil custody and to that extent his position might be prejudiced.
The rules will be as similar as possible.
The direction by the Executive to the courts could compel the courts to differentiate as to the standard of punishment applied. That, of course, is a matter for the courts and not for the Executive. That is why I am worrying about the constitutional implications.
I move amendment No. 11:
To add to subsection (3) a new paragraph as follows:—
"(c) specify the place at which such of the persons aforesaid as are specified by him shall be kept in custody and each place so specified shall be a prison to which the Prisons Acts, 1926 to 1970, apply."
The arguments for this amendment have already been made a number of times. Of course the arguments against it have also been made. Nevertheless I still think this amendment should be accepted because it will eliminate most of the problems with which we have been concerned. It should be possible for the Minister to specify the places and to take control and responsibility for those in charge of them. The possibility of two kinds of prisons, civil and military, has been well established. I think what the Minister has in mind is that there should be no difference between the two, but these titles have now been given to them and it would be very difficult to get them removed.
It is not so much the title I am worried about: it is the actual Department and the Minister who will be responsible. It should be the one Minister. If the difficulties mentioned by the Minister already can be overcome this can be achieved. I agree there are certain difficulties but where there is a will there is a way. If we have two kinds of prisons we shall have two kinds of prisoners and there will be an unconscious prejudice in regard to prisoners who may come to the courts on remand from military prisons. I think the Minister has admitted this and I think he has also admitted that he has in mind specific types of prisoners to be sent to military custody and specific types to be sent to civil custody. Already we have this prejudging of people and the only way out of it is to have the places of imprisonment all under the Prisons Acts. From time to time prisoners will, of necessity, have to be referred to military custody under this provision, prisoners that the Minister does not intend to place in military custody but because of lack of accommodation in the civil prisons he will possibly have to refer a person sentenced perhaps on a very minor offence to military custody. The prisoner will then have this label on him. This situation could also happen in reverse. I do not think the Minister will be able to adhere to his intention of keeping military custody for a specific type of offender and civil prisons for another type.
This is a dangerous precedent. It will prove unworkable and will make people sent to different prisons un-equal in the eyes of the law. I ask the Minister to accept the spirit of the amendment.
One brief point: we have our reservations about the Minister's bona fides—not his personal bona fides, may I say—in regard to the selectivity of the persons to undergo military custody but we are coerced by the exigencies of the situation to go along with this Bill. I am personally prepared to do so because I have in mind the provisions in section 1 which allow the House to debate a resolution earlier than 31st May, 1974 if in the meantime evidence of the exercise of selectivity comes to light. To that extent we are happy in that we can come back for a second look at the measure should the need arise. So, while we have reservations at present we find ourselves coerced to support it.
Is there any likelihood that a driver convicted of being drunk can be sent to imprisonment in the Curragh?
There is, yes.
Is there any likelihood that the prisoner convicted of manslaughter and given a term of imprisonment will be imprisoned in the Curragh? Or will there be selection of prisoners for various institutions? I do not know any more than the Minister what a political prisoner is. Certain defendants claim in court in presenting their cases that they are being charged with what are political offences. To me every offence against the law is an offence and contrary to good citizenship. If we are to have a situation in which the Curragh military detention camp will be used for a selected type of prisoner and the Minister will have discretion to send a prisoner to such detention, he should tell the House if he will send a prisoner convicted of drunken driving into military custody at the Curragh? Or is this military custody only for a special type of prisoner on which the Minister will decide?
It is wrong in my opinion to have any prisoner in military custody. It may be unlikely but it is possible that the Minister may find himself sending a person convicted of drunken driving to the Curragh. Perhaps the Minister would let us know if that is a possibility. We are not embarrassing the Minister but seeking information. This is a most serious matter which affects the citizens very much and one on which the House should get all possible information from the Minister to clear the air of uneasiness which may prevail outside the House as a result of this panic legislation.
I am in the difficulty that perhaps some of the Opposition are at cross-purposes with one another because, while I suspect that some members would like me to exercise a high degree of selectivity of a very special kind, on the other hand the more theoretical Opposition Members would clearly seek to ensure that I should not be selective and would point out that when this matter comes to be discussed in six months time they will make a point of examining whether I was selective in my administration of it. All I shall say is that there could be no question of prisoners being picked, as it were, by lot for remand in or to serve their sentences in military custody. The principal factors involved would be the state of security and so on in the other prisons and in the military prison. I could not commit myself to picking types of offenders nor could I commit myself to excluding certain types either. That is as far as I can put it.
A few minutes ago, I suggested to the Minister that the majority of the persons now in the Curragh were responsible for the troubles in Mountjoy. The Minister indicated that this was not so.
That is quite wrong. I indicated that I did not make that statement.
I have taken the trouble to go to the unrevised transscript and I quote what the Minister said last night:
The security that existed in the prisons up to Thursday last was more than adequate for any normal type of prisoner or even groups of prisoners such as we have seen in our prisons in the last few decades but where there is a group of 40 determined men whose sole objective is to create havoc in a prison no security except the most severe will ensure with certainty that they will not create that havoc.
I took the whole paragraph so that it would not be out of context. The Minister quoted a figure of 40. There are 40 persons in the Curragh. He goes on then to speak in relation to remand and the whole question of remand.
We are dealing with amendment No. 11 now.
I appreciate that but this is very relevant to the first paragraph that I have just read. The Miniser says:
The first point in regard to this is that a very high proportion of them—
meaning those who are in the Curragh
—were in custody on remand of their own volition. They were there because they chose not to take bail which was offered to them, not because the bail was unobtainable but because as a matter of principle they decided that they did not want to do it.
I do not see, in retrospect, that I misquoted the Minister. I understood that the majority of those in the Curragh were persons involved in the disturbances and the majority of those were persons who were in prison because of political offences.
Of course, to deal with the point, for what it is worth, Deputy Sherwin read out what I said and then he said, "I understand that that means such a thing". It means no such thing. It means what it says and that is that. It does not matter tuppence to me but Deputy Sherwin is acting most improperly vis-à-vis the courts and vis-à-vis people who are now being charged with offences allegedly committed last Thursday in making the sort of statements he is making here and, having read out what I said, going on to say that that means such a thing. It means no such thing and I did not say it did. What I said last night is what I said.
I was trying to establish that the Minister is selective in his transfer of persons to the Curragh and I suggested earlier on this evening that in future if persons are to be designated by the Minister to go to the Curragh it would seem to me that it would be because of their——
The amendment we are on at the moment is amendment No. 11. We cannot go backwards and forwards to discuss amendments.
The last time I was in the House, the House was dealing with amendment No. 10.
Amendment No. 11 has been under discussion for quite some time.
And there are only 45 minutes for all the rest.
There are important amendments to come, much more significant than this one.
Is amendment No. 11 withdrawn?
No. As I understand it, at the moment a number of people are remanded in the Curragh and there is a number of wardens from the other prisons in charge there. What is the objection to that continuing and to have the place there under the Prisons Act?
Of course, the position is that there are only two prison officers there and they have a nominal control but I am afraid it is only very nominal and it just cannot work because from the practical point of view they cannot physically keep them in their custody.
On the passage of this Bill these two will be withdrawn?
They will be withdrawn, yes.
Is it true to say then that there will be nobody with practical prison experience in charge there?
No. There will be military policemen who have experience of it all their lives.
Experience of a different kind, dealing with a different type of prisoner, perhaps not the type of prisoner that will now be there.
Is amendment No. 11 withdrawn?
No.
Does the Deputy wish to have it put?
Yes.
Amendment No. 12 has already been dealt with with amendment No. 10.
I move amendment No. 12:
In page 3, after line 6, to insert the following subsection:
"() If and whenever, at a time when this section is in operation, a person on remand or sent forward for trial or sentence is in military custody pursuant to this section, a court that further remands him in custody or a court that sends him forward in custody for trial or sentence or a court that sentences him to be detained in custody in prison shall commit him to military custody for the period of such remand, sending forward or sentence".
I move amendment No. 13:
In page 3, to delete subsection (4), and to substitute the following subsection:
"(4) The Minister—
(a) may, at any time, direct the transfer to a prison of a person in military custody pursuant to this section, and
(b) shall direct the transfer to a prison of all persons in military custody as aforesaid if he is of opinion that circumstances warranting their being retained in military custody no longer obtain,
and, if a direction under this subsection is given, thereupon any person concerned shall be transferred to a prison".
This is only a drafting amendment. A few words have been changed, just to clarify the meaning and intent of subsection (4) of section 2.
I move amendment No. 14:
In subsection (5), page 3, line 18, after "concerned" to insert "and the name or names of the officer or officers in charge of the place or places in which persons are kept in military custody pursuant to this section".
This amendment is designed to ensure that there is a particular named person who is responsible for the persons kept in military custody. I understand that in a civil prison the governor is responsible and when there is a question of habeas corpus the courts know who to turn to. It is obviously important that here also there should be some defined person, perhaps a camp commandant, the commanding officer of the military unit involved, perhaps, as we would hope, a governor appointed from the civil prison service but, at least, some named person who is in charge and known to be in charge and to whom the court can go if there is a habeas corpus issue. The prisoner should be able to know who is in charge and be able to name that person.
I am told that the position is, and this, of course, will be confirmed in the rules, that the officer commanding the military establishment of which the prison premises forms a part designates a particular officer to be governor of the prison and the rules which will be made by the Minister for Defence will make this clear also and the governor of the prison, who will be a designated identified person available to the prisoners, will stand in relation to them as would a civil governor to prisoners in civil custody.
I take it there is no objection to having his name notified to the Dáil, in accordance with the amendment?
I do not think there is any need for it because he is as identifiable as the governor of a civil prison is.
Is the question of the legal custody of the prisoners a matter properly for regulations or would it not have to be statutory? The Prisons Act of 1877 seems to give statutory custody to the governor of the prison and under the Defence Act, in relation to military personnel, they are given in charge specifically by a section of the Statute. Is it sufficient to have a regulation made by the Minister for Defence? We have a further amendment dealing with this point—No. 20. Perhaps we could discuss it at that stage.
All right.
I move amendment No. 15:
To add to subsection (7) a new paragraph as follows:
"Places in which persons are kept in military custody pursuant to this section shall be open to inspection by a Committee of the Oireachtas to be established in accordance with the procedures of the Oireachtas."
This amendment is designed to ease some of the apprehension there might be about this particular type of custody in that such a committee of this House would be in addition to the visiting committee provided under the Prisons Visiting Committees Act. The Minister will agree that this is an unusual piece of legislation and, as I say, it has implications which make some people apprehensive and it would go some distance towards removing this apprehension if the Minister would agree to a Special Committee of the Oireachtas being established to make periodic visits.
Of course, there will be a visiting committee established, in the same way as there is a visiting committee for each of our ordinary civil prisons. The authority and standing of that visiting committee would be undermined if it were simply a residuary body to a committee of the Oireachtas which would visit occasionally. I do not think you would get the right type of person to serve on a visiting committee in those circumstances and I do not think that they would exercise the proper independence which a visiting committee should exercise, if they were placed in this subsidiary position. The rules which will be made will establish a visiting committee and will give them all the powers which civil prison visiting committees have and will give the prisoner, through them, all the safeguards which a prisoner in a civil prison would have. I do not think a committee of the type suggested in the amendment would be warranted. In fact it would not be desirable at all.
Who will appoint the visiting committee?
The Minister for Defence.
It is not proposed that the visiting committee be in any way subordinate to the Oireachtas committee.
I know it is not proposed but I am afraid it would work out that way in practice.
I see that. It just seems desirable that this House, being responsible for the very unusual practice of putting prisoners into military custody, has a certain direct duty to ensure that this does not operate detrimentally to the prisoner's interest. The only way that can be fulfilled is by direct inspection by Members of this House. It could be that the problem could be got around if the Minister is willing to agree that Members of the Oireachtas would have the opportunity, if they wished to do so, of visiting the relevant establishment and satisfying themselves of the position.
Except that, of course, in the case of this particular establishment it will be a matter for the Minister for Defence and not for me. My agreement to allow Deputies to go to the civil prisons would not bind him but I will certainly ask him to allow it.
All right.
Would the Minister tell us whether any Member of this House, whether or not he or she is on a committee, as such, would be in a position, with the indulgence of the Minister in question, to visit the prison as distinct from visiting a prisoner in the Curragh? For instance, if I wished to visit the Curragh Camp would I be permitted to visit the prison as distinct from visiting a prisoner?
The Deputy means an inspection?
Yes.
There is nothing wrong with that.
This will be entirely a matter for the Minister for Defence and I do not seek to bind him in any way but as I understand the position, by analogy with the civil prison, a Deputy has no extra right to visit a prisoner; he has the same right as an ordinary person would have. He must show some relationship, some connection or some friendship. So far as inspecting the prison, as such, is concerned that would be a matter for the Minister for Defence and it has been our practice to allow Deputies to inspect when we would not perhaps allow an ordinary member of the public. I presume the same would apply in a military installation but I do not want to bind the Minister for Defence to that.
I raise this because if a Committee of the Dáil were to be established it is conceivable that Members of the Dáil other than the Members of that committee would wish to visit the prison. In view of the fact that the legalising of military custody is a responsibility of this House, Members of the House, to allay their own or their constituents' fears that things were or were not happening in the Curragh, might want to do this. I, as a Deputy representing a constituency, would like to inspect the prison in the Curragh.
It is suggested that Amendments Nos. 16, 17 and 18 be taken together.
One of these amendments is in my name but I might be able to assist in relation to the others by saying that in view of doubts mentioned by Deputy FitzGerald this morning, though they were not substantiated other than by quoting Senator Kelly, but in case there is anything in those possible doubts I took a look at No. 17 and I consulted the Minister for Defence and the Army about it. My initial reaction was, with their agreement, to accept amendment No. 17 down as far as the words "Minister for Justice". The Army would not agree to the exclusion of the provisions of the Defence Act, not because it related to prisoners but because it related to other civilian employees and also that it would have hindered their ability to deal with trespassers in the vicinity of the place. I was going to suggest to Deputies opposite that I would accept amendment No. 17 down to the words "Minister for Justice" which I think would meet their point because the remainder of the amendment is purely a removal of doubts clause which really is not necessary.
I accept that.
On the other hand, I have since had drafted a subsection which I could insert instead of (8) but I think that they really come to the same thing and it might be easier to accept No. 17 down to the words "Minister for Justice" at the end of the third line.
What about the Minister's own amendment?
Does the Minister agree to delete subsection (1)?
It will be deleted anyway but what goes instead of it depends on this discussion. The subsection I have had drafted reads:
In page 3, to delete subsection (8) and to substitute the following subsection:
"() The Minister for Defence shall make regulations in relation to the places and the manner generally in which persons in military custody pursuant to this section shall be kept in custody and such regulations shall correspond as closely as practicable to the rules for the time being in force under the Prisons Acts, 1826 to 1970, governing the treatment, employment and control of persons in prison."
It sets it out somewhat more fully and explicitly than Deputy Cooney's amendment, as amended, would and for that reason I suggest to the House, particularly as this has been agreed by the military authorities also, that we might use my amendment which I would call 17 (a).
Would the Minister clarify? Does that cover amendment No. 18?
If 17 (a) is accepted amendment No. 18 falls because the subsection would be gone. Amendment No. 17 (a) involves the deletion of subsection (8).
If Deputy Pattison withdraws amendment No. 16.
I just want to get my mind clear on it. I want to spell out the intention again.
May I intervene to ask a question? There is some wording in the Minister's amendment about which I am not too happy. It says:
...such regulations shall correspond as closely as practicable to the rules for the time being in force.
That is not the same as our amendment which was much more specific. I would be worried that the suggestion there that they might not correspond totally might be disadvantageous from the point of view of the constitutional issue which I raised. Would the Minister be willing to agree to delete the words "as closely as practicable" and simply state "the regulations shall correspond to the rules for the time being in force"? If that were the case I would be happy to accept his amendment and this might make it easier for Deputy Pattison to accept it also.
I do not think I could agree to the deletion of those words. Quite clearly, when you have military personnel in one establishment and civil personnel in another establishment, precisely the same considerations cannot apply.
The Minister was willing to accept our wording, namely, "the rules shall apply". That is even more stringent than saying that "the regulations shall correspond to the rules for the time being in force". The logic of the Minister's attitude defeats me. If that is his view I should prefer to go back to our own amendment and keep the first three lines which cover the point adequately and leave the Minister's amendment. The Minister's amendment may be preferable from other points of view, and in dropping these words which do not exist in ours and which in view of his acceptance of ours cannot be essential, it might be better to accept his amendment with these four words out.
The words we wanted to avoid were the words "not less favourable". I considered that the words "as closely as practicable" were as near as one could put it.
Where are these words?
In the original subsection (8).
In our amendment we stated "the rules for the government of prisons shall apply....".
I will take a chance on that. I agree to delete the words "as closely as practicable".
We will accept that.
Can the Minister state if it would be practicable to retain at least a few trained prison warders in the military prison for consultative purposes and for their general experience in this area? I cannot see any difficulty in arranging that some senior prison warders would be available. Is it possible to do that under the regulations?
They would not have any custodial function in a military establishment. They could be brought in for consultation and to advise the military but that would be the extent of it.
There is a case for having some people permanently there.
They would only be there in an advisory capacity.
Even that would help.
I am sure the Minister for Defence would consider this if he thought it beneficial.
The people who will be taking over under this subsection will not have any experience in this field other than the detention of members of the Army. Generally speaking, these are a different type of prisoner; by and large an Army prisoner is subject to strict discipline to a greater extent than is the ordinary prisoner. A different approach must be adopted in dealing with a civilian prisoner as distinct from an Army prisoner. It is most desirable that a senior officer in the prison service should at all times be in attendance to ensure that as far as possible civilian conditions prevail.
The rules will ensure that.
I move amendment No. 17 (a):
In page 3, to delete subsection (8) and to substitute the following subsection:
"( ) The Minister for Defence shall make regulations in relation to the places and the manner generally in which persons in military custody pursuant to this section shall be kept in custody and such regulations shall correspond to the rules for the time being in force under the Prisons Acts, 1826 to 1970, governing the treatment, employment and control of persons in prison."
I move amendment No. 20:
To add to subsection (8) new sub-sections as follows:
"Any place in which persons are kept in military custody pursuant to this section, and the staff of such place whether members of the defence forces or of the prison service, shall be under the direct control of a governor who shall be a member of the prison service and all prisoners in military custody shall be deemed to be in the legal custody of the governor.
All persons in military custody shall be deemed to be in the custody of the officer in charge of the place of military custody."
This goes back to the difficulty we have had all along. Many people consider it was not entirely necessary to have such a clear distinction between the civil and military parts. To emphasise the temporary nature of the change and to further emphasise the Government's desire not to introduce military detention per se in tabling this amendment we felt that if the person in control of the military prison establishment were to be an officer of the prison service it would help to clear the air and remove many of the doubts. Our amendment also states that persons in military custody shall be deemed to be in the legal custody of the governor.
If a prisoner in a civil prison suffers an accident in the course of his work, if he is doing rehabilitative work, the person he would sue would be the governor. I do not know who would be responsible for any liability he might be entitled to avail of. I understood there was a decision that the governor was in the same position as the occupier of a factory and had the various statutory obligations to provide safe systems and so on—I am subject to correction on this. If this is to be a prison in which normal treatment, employment and control are to prevail this will involve some kind of employment or rehabilitation. Should a prisoner be injured through the negligence of a fellow-prisoner, through faulty machinery or in such a way that would give rise to a common law action for damages, it would be clear whom he should sue. I understood that the person who had the legal liability to him was the governor, although I am subject to correction on this point. That is why we have included in the amendment the statement that the prisoner is in the legal custody of the governor. That is why we drafted the amendment to provide that the person in charge shall be a civilian.
I am advised that under a recent decision of the Supreme Court—unfortunately I do not have the name—the proper person to be sued by a prisoner in respect of a tort in a civil prison would be the Minister for Justice. Accordingly, the proper defendant to be named in a military prison would be the Minister for Defence.
I wonder does that follow?
It does, because the relationship of the Minister for Defence to a prisoner in his custody is the same as mine to a prisoner in mine. The amendment seeks to have a civil governor and, unfortunately, that is not a practical proposition. You either have one thing or the other. I am afraid it is impossible to mix them. The Army are quite adamant on this. It must be either one or the other. We cannot have a civilian involved in military administration, nor can we have military under a civilian, particularly when the premises concerned are in the middle of a military complex.
With reference to the second paragraph of the amendment, all persons in military custody will, of course, be in the custody of the governor as designated in accordance with the rules by the officer commanding the barracks or the camp. The question of liability to a prisoner for a tort, for example, will be covered in the prison rules made for the military prison.
We strongly urge the Minister to accept the amendment proposed by Deputy Cooney and his colleagues. The precise procedure whereby individual persons convicted on criminal charges will finish up in military custody is still unclear to us. If a person goes before the criminal courts or, as we may now anticipate before the special courts to be estabished, as indicated by the Minister this morning, on his appearance before such courts will there be a special file and will he be immediately transferred to military custody, or will he go to the normal prison and then into military custody if that is specified by the Minister?
The issue of committal into the prison system arises. While there can be a legitimate and valid argument for military custody for certain individuals, that does not necessarily mean that the custodial and legal care of such prisoners should lie exclusively with the Army authorities. It is manifestly fair and entirely legitimate that an amendment should be suggested in this House to provide for a regular prison governor from the regular prison officers staff with an overall legal watch dog effect on the care of prisoners in military custody.
If the Minister is as concerned as he says he is about lack of adequate prison accommodation and lack of adequate prison staff—and after all these are the two reasons why persons are to be committed into military custody—since there is an abundance of governor calibre staff available within the service, there is no good reason why the Minister could not appoint or promote some acting governors and designate them as governors of the military custodial establishments. This can be done. There is no great difficulty in it.
I am sure the Minister will not have any great legal difficulty in dealing with the Department of Defence on the matter. At least there should be in each what one might call military detention centre, which in effect is what is being opened, a resident civilian governor who could be entrusted with some supervisory control over prisoners in military custody. Such prisoners may well be handed back to him at any point in time for transfer back into a normal prison. Therefore, it is entirely legitimate that such a prisoner should have the benefit of the normal prison service. Otherwise we will be establishing in a very regular and orthodox manner military detention centres for selected groups of prisoners. While I think this is the intent behind the Bill, it would be highly undesirable that we should formally legalise it without the safeguard of a civilian governor in charge of such institutions.
By order of this House the Chair must deal with the remaining Stages of this Bill before 5.30 p.m., that is, approximately 17 minutes from now. There can be no further discussion on this Bill after 5.30 p.m. The Chair wishes to point that out so that there can be no misunderstanding.
When the Minister referred to the question of torts in military and civilian custody, he said that in military custody the Minister for Defence would be responsible. In the event of a disturbance in military custody leading to prosecution of persons involved in such a disturbance, will the Minister for Defence bring this matter to a military court as distinct from a civilian court?
Such charges would be brought in a civilian court.
Noting the difficulties the Minister has with the amendment as drafted, may I ask him whether he would be willing to enter into an arrangement with the Minister for Defence to make available to the Minister for Defence an officer or officers of the prison service on an advisory basis to assist the Minister for Defence in running the system?
I mentioned that.
I am sorry. I missed that.
Any prison officer who was there would have to be there in an advisory capacity. If the Minister for Defence and the Army authorities feel it would be beneficial to the prisoners to have somebody there in an advisory capacity, I will undertake to try to make someone available.
We appreciate the Minister's co-operation but we are up against the difficulty that all day we have been without the Minister for Defence. That is quite wrong.
It is appalling that he is not here.
It is intolerable that he should not be here to be able to tell us in cases like this that he would appreciate the assistance the Minister has offered to provide. All the Minister can do is say that he is willing to provide him with staff. He cannot say that the Minister for Defence will accept them. The Minister should be here. I should like to lodge a protest against this and I should like this protest passed to the Taoiseach. It is quite wrong to run the business in this way. He should have been sitting in here during the course of the debate to assist us when necessary.
This Bill was introduced by the Minister for Justice and it is entirely a Justice matter.
It is right that the Minister should take the Bill but, when issues of the kind we are now raising come up, he should be here to intervene in the debate in accordance with normal practice. I appreciate the Minister's willingness to co-operate on this point and I hope that the Minister for Defence, if and when he returns, will be willing to accept that assistance.
Deputy Clinton was here most of the time.
I move amendment No. 21:
In page 3, after line 45, to insert the following subsection:
"( ) In this section ‘prison' includes Saint Patrick's Institution (within the meaning of the Criminal Justice Act, 1960)."
This is purely a drafting amendment to clarify that St. Patrick's is included.
Would the Minister remind us of the reason for section 3?
It is to remove some doubt but exactly what kind of doubt I cannot remember. I said yesterday:
I am availing myself of the opportunity presented by the promotion of this Bill to insert a "removal of doubts" provision, that is, section 3. This section makes it clear that the Minister for Justice can acquire accommodation and use it as a prison.
Apparently there is some vagueness in the Principal Act, the 1877 Act——
Yes, it is vague.
——and this is to get over the vagueness.
The Tánaiste not being present to propose the amendment of it to the Curragh Detention Act, we are accepting the name as it is.
At this stage I would like to recall that yesterday when this Bill was introduced there were many apprehensions concerning it, apprehensions that it was going to introduce a type of backdoor internment, and many of us were doubtful about supporting it but felt coerced into supporting it by reason of the situation following the trouble in Mountjoy. This Party indicated that our support would be conditional on the Bill being of limited duration and I am happy to say that the Minister, in regard to that particular point, has met us by putting a time limit on it, albeit slightly longer than we would have liked, and in addition, there is provision for the House to pass a resolution terminating the Bill at an earlier date, or should the emergency still exist after two years—I hope it will not be the case—to allow the Bill to continue beyond the termination date. These provisions have gone a long way towards reassuring us and removing our apprehensions and we appreciate the Minister's attitude in accepting these amendments.
In addition, he has accepted further amendments from us, particularly amendment No. 17, the effect of which is to delete subsection (8) of Section 2 and to substitute a new subsection drafted by the Minister on the lines of our amendment. This subsection has the effect of providing that the regulations which cover the custody, employment and treatment of persons in temporary military custody will correspond to those which govern prisoners in ordinary prisons. This again goes a long way towards removing the taint of military internment from the Bill. I can say too that it has been a very worthwhile exercise to have had this debate. It emphasises the importance of always leaving sufficient time to enable legislation to be adequately debated.
We are not happy even with the final product as we see it now but we do have regard to the necessity to provide some alternative space for the time being. We were not happy with the open-ended nature of the Bill as it was introduced yesterday and we accept the Minister's guarantee that the provisions of the measure will be open to scrutiny, to full debate and examination, in this House in six months time and that we can seek at that time a repeal of its provisions and that if the Minister wishes to continue it after that time, he will have to justify continuing it after six months. For that reason we feel that there is a certain safeguard in the Bill which will tend to take from it some of the more objectionable parts which it originally contained.
I agree with Deputy Cooney in his comment that this exercise has been a good one. We managed to make the Bill a little less unacceptable anyway and we would hope that when we come to the special resolution which we will be putting in in six months time, we will be able to say that our worst fears have not come true and that the Minister will be able in return to tell us that good progress has been made on Mountjoy, and at that stage that he feels he can set even a much earlier date than 13th May, 1974, which he has included in the amended version of the Bill. We do not like this rushed form of legislation and it really was not necessary, I still think, to rush it in this manner, but even in this rushed manner, we have succeeded in improving the Bill quite a lot and if we had had more time to consider it and even to debate the various Stages, we would possibly have succeeded in making it much less objectionable still.
I remind the Minister of his guarantee of a review of the provision in six months and that we certainly will be very much on the ball when that period comes. We would hope that there will never again be a necessity to introduce legislation like this, which can give rise to very legitimate fears and suspicions, and we feel that the reasons for it should never have arisen if the necessary steps had been taken by the Government. We would hope to see the administration of justice carried out far better in future so as to avoid this type of very objectionable legislation, but we feel that we cannot deny, in the circumstances of the destruction of Mountjoy, that some provision like this is necessary and this unfortunately appears to be the only means available to fill the gap while Mountjoy is partially out of use.
Deputy Sherwin rose.
The discussion must end at 5.30 and it is now 5.30.
I will be very brief. I had intended to oppose all sections of the Bill, including the motion for its final passing, because I recognise this Bill to be a deliberate attempt to effect internment in military custody. I do not accept that persons now in custody since Thursday's disturbances could not have been accommodated elsewhere and I feel that it is the intention of the Government now, knowing that they have acted illegally, to make this illegal act legal by getting the House to pass this Bill.
Is this in the content of the Bill, Sir?
I would like the Chair to direct me how I can formally oppose all the remaining sections of the Bill.
I would like to take the opportunity of thanking the House for the consideration which has been given to the Bill.
I have not heard how I can oppose all sections of the Bill.
By voting against it.
On the motion "That the Bill do now pass".
The Deputy cannot oppose all sections of the Bill because all Stages have been agreed to except the last Stage.
On a point of order, will we have an opportunity of opposing the Final Stage?
Yes.
How?
By voting against it.
I would like to thank the House for the co-operation and help that was given in the passing of this Bill. I would like to thank in particular those Members who made a genuine attempt to come to grips with the problems connected with it and whose help has contributed to making the Bill a better one than it would be otherwise.
