Amendment No. 1 arises out of committee proceedings. Amendments Nos. 1 and 2 are consequential and are to be taken together by agreement.
Criminal Justice (Temporary Release of Prisoners) Bill 2001: Report and Final Stages.
Acting Chairman
I move amendment No. 1:
In page 3, line 13, after "1960" to insert "AND TO ESTABLISH A DEPARTMENTAL COMMITTEE TO EXAMINE AND REPORT ON THE FUTURE ESTABLISHMENT OF A PAROLE AND TEMPORARY RELEASE BOARD".
I forget if the Minister of State took this Bill on committee. This amendment is self-explanatory and was dealt with on Committee Stage. We would like to see the parole board put on a statutory footing, as it would be preferable to have certainty and absolute clarity with such a board. With that in mind we ask the Minister of State to investigate the possibility of setting up the parole board on a statutory basis or to establish a committee to do so.
I support both of these amendments. This measure is long overdue. We have been promised on many occasions that there would be a statutory parole board but we are still operating in an ad hoc way situation. We are putting together criteria and conditions under which prisoners will be granted temporary release but we still do not have a statutory parole board, which is the norm in most other jurisdictions. It is high time the Government put this process in train. I fully support these amendments.
One of the recommendations in yesterday's report from the new inspector of prisons and places of detention is the establishment of a parole and temporary release board on a statutory basis. The Minister of State should agree to this amendment.
The question of a parole board was raised on Committee Stage and in the interim the information on the current arrangements was furnished to Deputies Deasy, Costello and Ó Snodaigh. As they are aware, the information confirms that the interim parole board, which replaced the sentence review group, was established in April 2001 by the previous Minister. At the time of the appointment of the interim board, the Minister reiterated his position, that he intended to establish the board on an administrative basis initially, pending statutory provision in due course. It is the intention of the Minister, prior to formulating legislative proposals, to draw on the experience gained in the operation of the board on an administrative basis. That is the position of the Minister for Justice, Equality and Law Reform in the matter.
The interim parole board is made up of representatives of the Department, the Prison Service and others who represent the interests of prisoners. Accordingly, a proposal to establish a committee as proposed in Deputy Deasy's amendment would amount to duplication of the present arrangement. The amendment, in its expressed terms, seeks to establish a committee on a voluntary basis so it is not the type of statutory foundation that was referred to in the report published yesterday. I appreciate the reasons Opposition Deputies are anxious to flag this proposal. The position of the Minister is that in due course, as experience is gleaned from the operation of the interim board, we can then proceed to establish it on a statutory basis.
The Minister of State referred to an intention to act in due course. Can he give us a timeframe as to when enough time will have lapsed so that the experience has been garnered which will allow the Government to put this on a statutory footing?
At least 12 to 18 months will be required.
It has been a year already.
It is 12 to 18 months.
From now?
Yes.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 3, line 17, before "The" to insert "On application by a person serving a sentence of imprisonment, on recommendation of a prison governor or the Director General of the Irish Prison Service, or on the Minister's own initiative,".
After yesterday's report, it is crystal clear that the prison system needs comprehensive and fundamental reform. We welcome most of the Bill's provisions as going some way towards addressing issues in the Prison Service. The reason for this amendment is that it is unclear where in the legislation as drafted consideration of temporary release for a prisoner originates. Prisoners themselves should be able to apply for temporary release in addition to the Minister's initiatives, or those of the Director General of the Prison Service and various prison governors. At some stage a prisoner should be able to make an application to be considered for temporary release.
The Minister should establish this application procedure in a transparent way in this Bill and make it generally known throughout the prison population so that a prisoner can apply via an application form within the institution – they should be provided with that. It should also direct the Minister to publish the processing times and the procedures regarding the receipt of such an application. This is particularly important in cases where temporary release is being sought on medical or other humanitarian grounds. The present overly broad and vague discretionary provision is not sufficient.
Amendment No. 33, which I have tabled, would help to make this process more transparent and accessible to the prisoner and would enable him or her to get a determination. A prisoner might make an application for temporary release but would only hear back if he or she was granted it for whatever period.
On Committee Stage, Deputy Ó Snodaigh referred to the need for rules to ensure that a person can make a request for temporary release. The current position is that on being received into prison, a person is given very detailed information on everyday matters which may arise during the course of the person's detention. That information includes details of the circumstances and issues relating to temporary release so that the prisoner is fully aware from the commencement of a term of imprisonment that there is the possibility of temporary release. The prison rules make provision for a person to request to see the governor or a departmental official and concessions and privileges are explained to him or her by various persons in the system, such as the probation and welfare service. There is no need for this amendment and, accordingly, I do not propose to accept it.
It is important to understand in the context of this legislation that we are talking about persons undergoing a sentence of imprisonment and that the provision of temporary release is not a right but a privilege conceded by the Executive.
The last comment is generally accepted. These people are serving sentences and temporary release would be granted on the grounds set out in the legislation. One does not apply in writing but must go to see the governor. A person has no guarantee that his or her application will be processed on the grounds set out. There should be some way in which a prisoner can make an application which would ensure a determination is made as to whether the prisoner has or has not been granted temporary release, otherwise the prisoner must ask a doctor in the Irish Prison Service, the prison governor or another official. If an application must be made in writing and if there is a specific place in which to lodge it, the prisoner can be sure it is lodged, processed and determined. A prisoner can be refused temporary release on whichever basis outlined by the Minister, or he or she can be granted temporary release because he or she complies with the humanitarian, medical or other grounds set out in the Bill.
The information is given to the prisoner on arrival in booklet form. There is a half sheet available to make such applications in places of detention. Sometimes the application is made and acceded to orally. That information is available and many of the matters into which the Deputy went are matters of practical regime rather than ones which can be laid out in legislation. The Minister does not accept that the issue of a right to make an application should be written into the legislation.
Amendment put and declared lost.
Amendments Nos. 4, 11, 15, 16, 18, 24 and 30 form a composite proposal and amendments Nos. 35 and 36 are consequential thereon, therefore they may be taken together by agreement.
I move amendment No. 4:
In page 3, line 17, after "Minister" to insert ", or the Director General of the Irish Prison Service or a prison governor acting on the Minister's behalf as designated by the Minister,".
As this amendment is along the lines of the previous one, I will allow other Deputies the opportunity to come in on this one.
In regard to the amendment we just discussed and those we are now discussing, Deputy Ó Snodaigh is trying to improve the situation and to extend the remit of the application so that it could come from the prisoner and a recommendation could be made by the prison governor, the director general of the Irish Prison Service or by the Minister. There would be great access for people applying for temporary release. Likewise, the number of people designated to grant such release would increase to include the director general of the Irish Prison Service or a prison governor acting on the Minister's behalf as designated by him or her.
In general, these are desirable amendments which would improve access to temporary release for prisoners in terms of how to apply for it, who would be allowed to apply for it and who could grant it. Given all the burdens on the Minister, he would be able to designate to other appropriately qualified people to assess the requirements. They might be even more qualified than the Minister because of their role in prison administration.
When putting together a new structure, or at least new criteria, regarding temporary release, it would be no harm to look at the existing structure under which it is granted, how the prisoner applies, who might apply on his or her behalf and who might be entitled to assess and grant it. A wider structure as opposed to the existing one where the prisoner solely makes the application and where the Minister solely determines it, would be desirable.
The purpose of this Bill is to set out the criteria which should govern the operation of temporary release and to allow for the transparency we would expect in the exercise of ministerial powers and to lay down clear legislative standards regarding the exercise of ministerial powers in this area. Deputy Ó Snodaigh expressed a concern on Committee Stage that the proposals contained in the Bill might place an onerous duty on the Minister for Justice, Equality and Law Reform. Deputy Costello echoed that sentiment this afternoon but I assure them that the Minister has very broad shoulders.
Apart from that issue, the Bill simply allows for the current system of temporary release to be put on a more structured, transparent and statutory footing but it must be remembered that persons detained in our prisons and places of detention are detained on foot of court orders. The granting of temporary release is, therefore, a significant and important function which should not be regarded as an operational function which can readily be delegated to other bodies or persons. There is a significant element of risk in the operation of any system of temporary release. The paramount concern must always be the safety of the public. In such matters, responsibility must rest with the Minister for Justice, Equality and Law Reform. He or she is accountable to this House in the exercise of his or her powers and can be taken to account in this House in the event that he or she exercises powers in a way which go beyond proper practice. All of that is protected in this legislation.
Were we to go down the route of delegating these powers to the governors of prisons or the director general of the Irish Prison Service, we would then be embarking on a route where the accountability which the Minister has to this House under the legislation is diminished.
The purpose of these amendments is similar to the first one that was rejected, namely, to try to ensure that this facility, which is being put on a statutory basis, is available to prisoners if they meet the criteria. Rather than people having to wait for the Minister to make a decision, he would be able to designate one, two or perhaps more people – in this case, the Director General of the Prison Service or a prison governor – to act on his behalf.
It is not as though we have a huge number of prison governors, so we are not saying that anybody could overturn or interfere with a court's decision. We must also remember that most people in our prisons are not there for either serious or violent offences. The vast majority of people who would be applying for temporary release would not be a danger to society. The Bill covers eventualities which would prevent those who are such a danger from being granted temporary release. In most cases it would be appropriate that the decisions be dealt with at a lower level than that of the Minister. That is why this responsibility should be delegated downwards so that the Director General of the Prison Service or the prison governors can act on behalf of the Minister.
They would be doing so in any event, in that they would obviously be asked for their opinions by the Minister in respect of these prisoners. Why not give them the right to make a determination in these cases? If the case was likely to be controversial, there would be nothing to prevent the prison governor or the Director General of the Prison Service from referring upwards to ensure that the Minister makes the unpopular decisions if they were unhappy about making such a decision.
I reiterate the point I made with regard to those within the prison system and those who would be applying for such a facility. At present, the figures for Irish prisoners show that four out of every ten committals are for less than three months and that six out of every ten are for less than six months. These are not violent criminals or the notorious cases that we see in the papers. Eight out of ten are committed to jail for less than a year.
The way the Bill is constituted at present means that any of these prisoners who wish to apply for temporary release on the grounds provided in the Bill would have to be dealt with by the Minister. It is a pity that they could not just be dealt with in their place of imprisonment. Most of the governors are well meaning, well in touch with society and accountable to the Minister and the Prisons Service in which they operate. I do not think that, by giving them the additional powers I have requested in this series of amendments, we would be granting leave for anybody or anything in a way that would undermine our judicial system.
First, there is no practical or communication problem on this issue. There is no difficulty in securing instantaneous communication between the various places of detention in prisons and the relevant offices at the Department of Justice, Equality and Law Reform. There is no practical argument for this form of delegation. It is not essential for practical reasons and these matters can be decided very speedily within the Department. These matters often require to be decided very speedily in the Department when compassionate requests arise in respect of deaths, bereavements or medical emergencies. There is no practical difficulty.
On the issue of principle, I have three objections to the Deputy's proposal. One relates to the question of consistency. It is very important in enacting legislation in an area like this, in respect of which we are laying down standards for the operation of temporary release, that those standards should be applied consistently. That is only fair to prisoners and to those who sentence them. The consistency that is required can best be secured if one body is charged with the responsibility of administering the standards. If we delegate this function to prison governors or to the Director General of the Prisons Service, it is inevitable that divergence of interpretation will arise in different penal institutions. That is undesirable.
In a matter of this importance, where we are dealing with court orders and a facility that the Executive has to vary and modify a court order in exceptional circumstances, it is desirable that we have a consistent practice and that it is a practice arrived at by a Minister, on advice from his officials, as an external check on the entire matter. It would not be desirable to delegate such a function to an individual officer within the penal system.
The position of the governors of the different institutions could be compromised by such a proposal because the function of a governor is to act upon the warrant delivered to him or her when taking custody of the detainee. When the custody is received, the governor must act on the warrant, which is a court order commending him or her to hold the detainee. If we introduced into that a facility whereby the governor can simultaneously exercise a power of temporary release, we would, in fact, be putting the governor in a peculiar position in respect of the authority he or she must have in the institution. The governor is the person holding the prisoner and that is his basic function. These are my objections.
Deputy Ó Snodaigh referred to short stay prisoners serving sentences of under six months or three months and said that we are not dealing here with violent criminals. That is not necessarily the case. In many instances, violent criminals do not even end up in prison or serve custodial sentences at all. It is not true to say that people who serve short stay prison sentences are not necessarily violent criminals. That is not true at all.
Deputy Deasy is correct, but, in general terms, the majority of those within our prison system are not violent criminals. More so than in any other European country, the majority of them are in prison for non-violent crimes. Many are in for non-payment of fines, etc. In a proper system, they would not be in prison at all. We would have alternative methods of extracting retribution, punishment or whatever society decides.
We could kneecap them.
One could probably do that if one wished. The point the Minister of State made is quite valid in that consistency is required in sentencing. The Minister of State referred to consistency in granting temporary releases, but if we do not have consistency in the first instance, a person might get a three-month sentence for assaulting somebody in one town but get ten years for doing so in another. That matter needs to be addressed in the long-term. I know that the Minister for Justice, Equality and Law Reform has great plans to tackle everything and perhaps that might be one of the things he takes on.
Consistency is also required in terms of prison conditions. The report published yesterday criticises successive Governments in regard to prison conditions. It states that two prisons should be pulled down and rebuilt because they are in such bad condition. The staff quarters in some of the prisons are such that nobody would ask anybody to work in those conditions. I agree with the Minister of State that there is a need for consistency, but we should start to tackle the problems in the prison system. When there is consistency across the board and accommodation is of a similar standard, the availability of educational facilities within prisons, sentencing policy and everything else is consistent, then a prisoner could be told that he or she could not be granted temporary release because there is a standard in place and one cannot break the law. I do not understand why there is a problem in this regard because every one of the prison governors and the director general of the Prison Service are answerable to Departments. If they were granted the powers I propose in my amendment, they would be answerable to the Minister. That is where there is consistency.
I cannot understand why the Department would have to receive a case file and be informed of the reason an individual should be granted temporary release. Such a determination could be made at local level in a better fashion than by an official in the Department who would not have met or have any personal knowledge of the individual concerned and whose decision would be made on the basis of what is written in the case file. At least the prison governor would be aware of the prisoner and would be closer to those who deal with him or her on a day-to-day basis to enable the governor to make the determination as to whether a prisoner would qualify for temporary release or whether a prisoner's circumstances would require it. A governor would be able to make a judgment quickly on granting a prisoner temporary release on humanitarian grounds if, for example, a prisoner's child was seriously ill in hospital. However, under the legislation a governor would have to refer such a matter to the Department. If a governor wanted to contact the Department after 5 p.m., would the Department be open? A governor could make a decision late at night to grant a prisoner temporary release in the event, for example, of one of a prisoner's parents being on his or her death bed following an accident.
The Minister of State mentioned overcrowding in the prisons. If a fire broke out in a prison and prisoners were released on that basis, with which I do not fully agree, would a governor have to telephone the Minister who might be on holidays in Majorca or wherever he goes and say that he has to release the prisoners quickly to which the Minister could reply that the governor would have to check with his official and fill out the necessary forms before such releases could be granted? Such a determination should be made at local management level.
Is the Deputy pressing the amendment?
Yes.
Amendment put and declared lost.
Amendment No. 37 is related to amendment No. 5 and, therefore, they may be discussed together.
I move amendment No. 5:
In page 3, line 17, after "may" to insert "by direction in writing".
The Minister seems to have gone along to a considerable degree with the proposal in the amendment. I propose that the Minister may make a direction in writing as regards the release of a prisoner. Amendment No. 37 proposes that after the word "direction" to insert the words ", and shall make and keep a record in writing of that direction". I am satisfied with the Minister's amendment and I will withdraw mine.
I understand I must move amendment No. 37 which was taken with amendment No. 5.
We will move that amendment when we come to it. If the Minister of State wants to speak on the amendment, he should do so now.
The reasoning behind the Government's amendment is that the slightly more flexible form of wording is to ensure that a record is always kept and that it permits the flexibility that is needed especially at weekends or late in the evening when the direction might, for example, be given orally on the telephone and can later be followed up in writing for record purposes. That is why the formula used by the parliamentary counsel is somewhat more flexible. It also covers an issue raised by Deputy Ó Snodaigh on the previous amendment. There is no question of telephoning a Minister on holidays – there is always a duty team available in the Department to deal with these matters.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 3, line 20, after "period," to insert "or during such time or times in the course of a period so specified".
The purpose of this amendment is to give greater flexibility regarding the temporary release of prisoners by specifying beyond a temporary period to periods in terms of release on a day-to-day basis or a prisoner could be released to go to a job, to attend a course and such release could be granted over a phased period rather than for a specific period as stated in the Bill. Such temporary period is all that is stated in the legislation. Some flexibility is required to meet the needs of prisoners on temporary release.
When one considers the criteria for qualifying for temporary release, one of the major considerations is rehabilitation. There needs to be some link between a prisoner serving a sentence in a prison and that prisoner being released into the community. A former High Court judge, Mr. Justice Kinlen, who released a report today on prisons was critical of the manner in which people are released from prison and about the fact that there is no structure in place to ensure that the necessary resources were put in place in this regard. As he put it, a prisoner could be released with perhaps €60 in his or her pocket, he or she may have no housing, no roof over his or her head and there was no proper link with the community in respect of that person. If prisoners are to be released, there should be preparation for such release. Such release should not be covered under one specified period, rather it should be over a period of time.
This is also envisaged in the report of the National Economic and Social Forum which provides that the process of imprisonment is a continuum, that a sentence management plan should be put in place and that from the induction of a person into prison a multifaceted team should meet and agree with a prisoner a particular approach right through that prisoner's time in prison in terms of what he or she would do for the duration of his or her time in prison and that a structure would be put in place for that prisoner's release. Such a structure would give a more meaningful direction to a prisoner serving a term in prison than what is in place at present.
All that is reflected in the criticism by the first inspector of prisons. The initial inspectorate which existed up to 1928 was abolished. After 75 years we have the first independent inspector inspecting our prisons. What he has revealed is eye-opening in terms of the appalling degree of inadequacy in the operation of the prisons. Imagine asking that two prisons be closed and criticising prisons right across the board for inhumane conditions by and large and a total absence of structure and direction. If we are going to introduce on a legislative basis the conditions and criteria on which we release prisoners, such provisions must be incorporated into the overall plan for the prisoner. We should provide greater flexibility in the manner in which prisoners would be released by not limiting temporary release to a single period but rather basing it on a broader criterion of a number of periods.
The Minister of State's predecessor who was here, the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea, threw promises about more or less like confetti, that virtually all of the amendments which I tabled would be looked at very seriously for Report Stage. I notice he has looked at only two of them. One of them we will see later. I have a further criticism of the manner in which he has dealt with it. I had thought these amendments would have been accepted and that we would have some action on them at this stage.
The issue has been reconsidered and examined in depth since the amendment was moved by Deputy Costello. The advice received is that the present wording is effective in allowing for full flexibility in determining the times and periods for which temporary release is granted. I emphasise the plural in those terms. That may be put on the record of the House – the times and periods. We are satisfied that the wording will provide for that.
The person may be on a temporary release for a period of a number of days, or on a day to day basis for a number of hours. The wording contained in section 1 which amends section 2(1) and reads "Subject to such conditions as may be specified in the direction or rules under this section applying to that person." Those words are permissive and empower the Minister to deal with this matter. I do not accept that the amendment moved by the Deputy gives any added value to the text of the Bill, and may lead only to confusion. For those reasons I do not propose to accept the amendment.
If the Minister of State says the text already reflects what I seek to introduce, I would be happy. We had this discussion earlier on about "period" and "condition" being two totally separate expressions. "Period" refers to time while "condition" refers to the circumstances under which somebody is released. One needs to extend the periods, so that it must be for more than one period or for an extended phased period –"periodic" might be a better word. To my mind, conditions do not adequately cover a time category, which is different from a condition category.
Condition includes the concept of time. The expression "condition" relating to circumstances can include time. I am not the jurist that the Minister of State, Deputy O'Dea, is, but that is my considered opinion on the matter and I am happy to put it on the record of the House on behalf of the Minister for Justice, Equality and Law Reform, Deputy McDowell.
All things are possible in the Department of Justice, Equality and Law Reform.
Is the amendment being pressed?
Yes.
Amendment put and declared lost.
Amendments Nos. 7, 8, 9, 12, 20, 21, 25, 29 and 31 are related and may be taken together by agreement.
I move amendment No. 7:
In page 3, line 25, to delete "him" and substitute "the person".
The issue here is the gender-proofing of the legislation. We raised this on Committee Stage and again the Minister promised he would look at it. He was extremely positive in the nature of his promise. He said he would seek to ensure that the legislation would be gender-proofed in whatever fashion he would do it. It would either be gender-proofing in the Criminal Justice Act 1960 being brought into line with the new legislation, or this legislation being brought into line with the Criminal Justice Act 1960. The Minister does not seem to have done that. It is a bit disappointing that the Minister did not deliver somewhat on his promise in this respect, because he seemed to be extremely happy with the need for gender-proofing. He felt that it was very much a principle that he stood over, and we were sure he would deliver in the area.
The Minister indicated that his preference was that the whole 1960 Act would be amended to gender-proof it. When I was tabling these amendments, I had hoped at this stage I would be able to withdraw them, because I thought I would have in front of me a series of amendments from the Minister stating that he had changed "person" to "he/she" or whatever formulation of words the Minister would come up with. The idea was that we would have taken the opportunity at this stage to ensure that a Bill passed in another era, in 1960, would be brought up to date and gender-proofed. It is a pity it is not being done.
I am aware that there could be problems if these amendments were passed on their own. The Minister explained that. We should still accept them, and quickly bring in legislation which amends or gender-proofs the Criminal Justice Act 1960 to bring it in line with a modern society and the terminology we should use. When discussing Bills which seek to amend any Bill, we should use the opportunity to gender-proof previous enactments.
I regret I do not possess the Santa Claus-like qualities of the Minister of State, Deputy O'Dea, in this amendment.
It is a bit like a bounced cheque.
I would prefer to draw it – that is the answer to the Deputy's remark.
The purpose of these amendments is to avoid reference to the masculine gender in the Bill, and I can well understand the motivation of the Deputies in tabling the amendments. Where the purpose of the legislation is to amend older legislation, such as in this case, amendments are drafted in the same gender as the original Act. The 1960 Act which the Bill amends was drafted in the masculine gender, hence the use of "him" and "his" in the Bill.
The matter was discussed in committee, but the Office of the Parliamentary Counsel has been consulted again on the issue, and its strong advice is that to go down this road would create a huge additional work load, which would have huge resource implications for all legislation. The Office of the Parliamentary Counsel has pointed out that in any legislation which amends pre-1993 legislation, its practice is to use the same gender as is used in the original Act. This approach applies equally to both genders. In any event, as already indicated to Deputy Costello in committee, the Interpretation Acts of 1937 and 1993 provide that in every Act, every word importing the masculine or feminine gender, unless the contrary intention appears, is construed as applying to the other gender.
An issue of this kind is primarily a matter for the professional judgment of the Office of the Parliamentary Counsel, and the Department of Justice, Equality and Law Reform must be guided by that advice. The advice of the Office of Parliamentary Counsel is that these amendments should not be made, and accordingly I do not propose to accept them.
That is not good enough. We now have a Bill which refers to a single gender. I can imagine this Bill arriving in the women's prison in Mountjoy. The women prisoners will understand from it that they are not entitled to temporary release.
That is right.
The legislation refers to "him" and "his". The Minister says in any case that temporary release is a privilege, so the women prisoners will presume they have no right to it if they receive it. I cannot see that this is such an insurmountable problem as the Minister of State makes out. All legislation should be gender-proofed, and it should not be beyond the competency and the capability of the Minister of State's officials in his Department. It did not seem to present a problem to the Minister of State, Deputy O'Dea. He was quite certain that this matter could be addressed without difficulty. Perhaps he has greater powers of jurisprudence, legislative competence and so on.
Imagination.
Perhaps there is a dash of imagination thrown in. The matter might well be looked at again.
It is a pity, as I said earlier, that if these amendments were proceeded with, half the Act would be gender-proofed while the other half would not be. The opportunity was there. In future, all Bills or amendments to existing legislation should be gender-proofed. That would not be insurmountable, as the existing Acts would remain until such time as they are amended and we would only do it as we deal with all the other legislation that we amend.
The capacity question here does not relate to the Minister of State, Deputy O'Dea, but to the Office of the Parliamentary Counsel. We must take that office's advice as paramount. Every day on the Order of Business, Deputies press for legislation and we all know how much urgent legislation is required. The Office of the Parliamentary Counsel has advised that were we to introduce this requirement for all pre-1993 legislation, which is what we would do if we went down this road, we would put a huge strain on its capacity.
Question: "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 8 and 9 not moved.
I move amendment No. 10:
In page 3, line 29, after "Síochána" to insert "or any other authority concerned in the enforcement of the law, including an authority of another jurisdiction,".
One of the conditions for temporary release is that the prisoner would assist the Garda Síochána in the prevention, detection or investigation of an offence or the apprehension of a person who is guilty of an offence or suspected of having committed an offence. I propose that we extend this beyond the Garda Síochána. Not only could they assist the Garda Síochána, but also other police forces. For example they could be of assistance to Europol or to the Director of Corporate Enforcement.
We spend considerable time in the Joint Oireachtas Committee on Justice, Equality Defence and Women's Rights scrutinising European legislation and Framework Documents. As part of the Schengen acquis we co-operate with police forces in other European countries. Crime is no longer a domestic issue – if it ever really was – and is now more international. Specific relationships have been established on a structured basis between police forces right across Europe.
This amendment will give the Minister more flexibility and will allow for a greater use of this criterion for temporary release of prisoners, which would be beneficial to the State in the long-term. If it could assist in the apprehension of other people who are guilty, the Minister should accept my amendment and insert this clause.
I disagree with the Deputy on this amendment. If other law enforcement authorities wish to do so, they could proceed through the Garda Síochána. This amendment would set a dangerous precedent and we should not go down that road. The police force of the State is the Garda Síochána. In the future, when we have a single police force on this island, requests from other police forces, including Europol, should be made through the Garda.
I did not even mention the PSNI.
There are two elements to the Deputy's proposed amendment. The first is for a person to be allowed temporary release to an enforcement authority other than the Garda and the second is for the person to be made available for foreign law enforcement authorities. The Garda Síochána has overall jurisdiction in the prevention, detection or investigation of offences and to accept this amendment might only serve to add confusion. The Garda, as the primary body with responsibility for prosecuting criminal offences, would expect to be asked for assistance by any other bodies that might require its assistance.
As regards the issue of making the person available for the purpose of investigations that involve another jurisdiction, procedures are already in existence for mutual assistance under the Criminal Justice Act 1994 to cater for such circumstances and those procedures are contained in section 53 of that Act. That provision will be supplemented with the Criminal Justice (International Co-operation) Bill, which will give effect to a number of EU instruments and a Council of Europe agreement relating to mutual assistance. The Bill is in the course of preparation at present.
These EU and Council of Europe instruments contain provisions in respect of the temporary transfer of detained persons to other States or territories to assist in investigations, which will allow for temporary release to assist with investigations in another jurisdiction where the prisoner has not consented. At present, the prisoner's consent is required.
Deputy Costello has suggested that it is preferable to keep all maters relating to temporary release in one item of legislation. However, where another jurisdiction is involved in a request for temporary release of a prisoner to its territory, the appropriate place for such provisions is in legislation relating to mutual assistance. Arrangements for mutual assistance are agreed in a treaty. The safeguards and procedures that apply to such mutual assistance and the transfer of the prisoner are contained in that treaty. It is desirable that the terms of that be incorporated in the relevant municipal legislation for the protection of all the interests involved.
I do not propose to accept this amendment.
I do not agree with the Minister of State. I do not see any reason for not having grounds for allowing somebody to be released to assist the Garda Síochána or any other authority concerned in the enforcement of the law. What happens in respect of the Office of the Director of Corporate Enforcement, which operates independently of the Garda and which might need assistance in dealing with offences?
There is no reason not to have mutual agreements with other countries in the European Union, as is the case at present, and at the same time have the totality of criteria here in this single Bill covering temporary release. That was what was intended and it was what the Attorney General requested in 2000, as a matter of urgency, to ensure that we had a proper legislative underpinning for the temporary release of prisoners.
The Garda is part of the Office of the Director of Corporate Enforcement.
Amendment put and declared lost.
Amendment Nos. 11 and 12 not moved.
Amendment 14 is an alternative to amendment No. 13. Amendments Nos. 13 and 14 may be discussed together by agreement.
I move amendment No. 13:
In page 4, to delete lines 1 to 6 and substitute the following:
"(c) where, in the opinion of the Minister, the temporary release of the person would be in the interests of public policy,”.
I tabled this amendment to save the Minister some blushes. The section states that the prisoner may be released:
(c) where, in the opinion of the Minister, it is necessary or expedient in order to—
(i) ensure the good government of the prison concerned, or
(ii) maintain good order in, and humane and just management of, the prison concerned . . .
I always understood that prisoners were sentenced to ensure good order in society. If we are now to release prisoners in order that one can ensure the good governance of the prison and maintain good order, it turns the whole purpose of imprisonment on its head. The Minister of State will be a laughing stock if it gets into the public domain that this is one of the reasons for releasing prisoners. I am giving him a way out by introducing a more flexible structure. Paragraph (c) of this amendment would replace the existing section to state “where in the opinion of the Minister the temporary release of the person would be in the interests of public policy”. Acceptance of this amendment might save the Minister of State's blushes.
Fair play to the Deputy.
I cannot accept the amendment. Circumstances can arise as outlined on Committee Stage where an emergency arises and the Minister needs this reserve power.
If somebody is a danger inside prison, they are to be allowed out in society. Is this the new mantra?
If a prison went on fire, we would be in a difficult position.
That has nothing to do with good management.
Acting Chairman
As it is now 4.30 p.m., in accordance with the order of the House today, I must put the following question: "That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, that Report Stage is hereby completed and the Bill is hereby passed."
Question put and agreed to.