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Dáil Éireann díospóireacht -
Thursday, 8 Mar 2007

Vol. 633 No. 3

Prisons Bill 2006 [Seanad]: Report Stage (Resumed) and Final Stage.

Amendments Nos. 20 and 21 are related to amendment No. 19 and all may be discussed together.

I move amendment No. 19:

In page 18, between lines 8 and 9, to insert the following:

"(a) An Bord Pleanála,”.

This is an amendment to Part 4, which sets out new requirements relating to the construction and extension of prisons. We had a detailed debate on these matters on Committee Stage and the Minister explained that neither of the channels available, that is, going through normal local authority planning nor the processes introduced last year for strategic infrastructure, is appropriate for the planning of prisons. Two major prison developments are envisaged in the immediate future in north County Dublin and Cork. The Minister wants to introduce a regime that would do a number of things, the most important of which is to ensure his proposals are robust enough to be safeguarded against EU scrutiny of their environmental impact. He has incorporated them into this Part.

My concern is that the role of the Department and the Minister in this area is too direct. The Minister will explain that a division of the House will be required to approve a prison development, which will give it the ultimate seal of democracy. However, much is passed in this House without the greatest scrutiny and that pattern is likely to be repeated at least for the next few weeks, as evidenced by the Order of Business. I would like to ensure a development plan for a prison would be examined not only by the Department of Justice, Equality and Law in the context of its requirements and that of the criminal justice system and the Oireachtas, because very few of us are spatial planners or architects, but also by experts in this area. That is why my amendment proposes that An Bord Pleanála should be included in the parties listed under section 20 who will receive the environmental impact assessment.

An Bord Pleanála is the State planning authority and it has a nationwide remit. The current prison development plans relate to two large local authority areas, Cork and Fingal, both of which have reasonably developed planning authorities. Smaller local authorities might have limited planning expertise to deal with a major infrastructural plan and I acknowledge that was considered when this Part was drafted. However, at what point will expert planners be involved in this process?

Under section 19, the Irish Prison Service will appoint a person to prepare an environmental impact assessment. Will the Minister confirm that person will be an employee of a commercial company? Where in this process will an independent planning expert have an input? Where will his or her view be captured? Whatever about the requirements of the criminal justice system regarding prisons and the design issues, where will relevant planning issues such as the location of a prison and the appropriateness of the site and its development be determined? An Bord Pleanála is the only body with that residue of expertise. That is why I ask the Minister to take careful notice of the notion that the board should be included among the parties to receive the environmental impact statement.

I do not propose to accept the amendment. An Bord Pleanála has clearly defined functions, principally in the area of appeals but also in regard to the referral of particular questions and applications. It does not have a role in the construction and extension of prisons and it does not have expertise that is special to it in that context. I specifically chose to introduce a separate clear and transparent planning process for new prisons because the construction of a prison can be a controversial issue and it is a matter of national importance. I would like to introduce a process that would involve widespread public consultation, as provided for in this Part.

Development plans introduced under it cannot proceed without the approval of both Houses of the Oireachtas and any scheme approved must be confirmed by an independent Act passed by the Oireachtas.

Will that be done by statute rather than a motion?

Yes. Given that Oireachtas approval is necessary, there is no clear role for An Bord Pleanála under this Part and I do not, therefore, see the point of serving notice of the development on the board. Nevertheless, section 20 provides that notice of the development shall be published in at least two newspapers and, under section 21, interested parties can make submissions or observations on the proposed development. An Bord Pleanála has other functions and its role is not to act as a watchdog on State developments when this House is being given that function.

I regret the Minister read his briefing note because he normally listens to arguments from the Opposition and does not read such notes. I do not disagree that the framework he has identified and set out is an improvement on the current framework. However, he has not answered my question. Perhaps my proposal to refer such plans to An Bord Pleanála is not ideal and I am happy to concede it if the Minister has a better proposal. Where will an independent planning expert be involved in this process? While the process is democratic in that the citizenry and, ultimately, the House will have an input, I have no planning expertise and, as a Member, I am not atypical. I cannot look at a development and say it is good or bad planning, that it fits into the national spatial strategy or that it is in a proper or a disastrous location. We need some planning input into a major infrastructural proposal of this scale. The notion that it is approved by this House, that it requires a statute or that local people have an input is all well and good but it does not answer the fundamental question, where is the planning expertise?

I disagree with the Tánaiste that An Bord Pleanála has no expertise in this matter because it clearly does. It ultimately determines all major developments going through the normal planning process. Under the current appeals process, very large developments are determined by it and under a recent statute, all compulsory purchases, for example, are determined by it. If the Tánaiste does not want An Bord Pleanála, fair enough. However, at what point will an independent assessment of planning, spatial planning and environmental implications from a planning point of view take place and by whom will it be done?

I support Deputy Howlin on this issue. The whole planning process is very sensitive and our planners have expertise on a broad range of issues as a result of their experience and knowledge. Surely the input of professional people would be valuable.

Deputy Jim O'Keeffe tabled amendment No. 20, which is a simple one. It appears from section 20 that the Minister will give notice of development to everyone but the Oireachtas. This simple amendment will require the Minister to include the Houses in the notice sent.

In regard to the notice, section 20(1) provides that on receipt of the documents mentioned in section 19(4), the Minister shall give notice of the development to the planning authority or authorities where the development is to be situated, to members of the public, to the Minister for the Environment, Heritage and Local Government and, if the development or any part thereof is adjacent to the foreshore, to the Minister for Communications, Marine and Natural Resources. However, the important point is that subsection (2) goes on to provide that the Minister shall cause a copy of the notice to be laid before each House of the Oireachtas, so all Oireachtas Members will be notified of it.

The widespread public consultation process will then be the subject matter of a process which involves the appointment of a rapporteur under section 23. The rapporteur is supposed to analyse all the submissions received and put them before the Minister who——

I raised this point on Committee Stage. There is no criteria in the Bill in regard to the rapporteur. The Tánaiste could appoint me as rapporteur under the Bill. What class of individual does he envisage as rapporteur?

Somebody competent to synthesise——

Would it be a planner or an official?

It would have to be somebody who would be competent to synthesise the submissions and the environmental impact assessment and to put a report in the Minister's hands. The Minister is then obliged, under section 23(5), to publish the rapporteur's report. That will also be in the public domain and available to all Members of the Oireachtas. We can tie ourselves in knots on all this but the truth is this is a very open process. It is far more open than any equivalent planning process.

I can see that. Has this Bill already gone to the Seanad?

I would have tabled another amendment on the definition of "the rapporteur" because it would safeguard the issue if we included a definition of the category of people who should be the rapporteur. If I thought there was an independent individual trained in spatial planning and planning matters who would synthesise all this — to use the Tánaiste's word — I would be happy. As I cannot table an amendment, perhaps the Tánaiste might at least bear that in mind when selecting the individual to be appointed since I take it he is going to act on the legislation rather speedily.

Is the Deputy pressing his amendment?

On the basis the Tánaiste may well be impressed enough to take on board at least the gist of what I want, I will withdraw the amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 20 to 22, inclusive, not moved.

I move amendment No. 23:

In page 23, between lines 41 and 42, to insert the following:

"(2) Where immediately before the commencement of this section a person held office as Inspector of Prisons, he or she shall become and be the first Inspector of Prisons pursuant to this section upon such commencement.".

We had a debate on this issue and I will not rehash or re-quote some of the things I said on Committee Stage. This is a simple amendment which states: "(2) Where immediately before the commencement of this section a person held office as inspector of prisons, he or she shall become and be the first inspector of prisons pursuant to this section upon such commencement.".

I tabled this amendment to ensure there is not a lacuna in terms of the continuation of work. Presumably, the current inspector of prisons is already engaged in inspection and in the correlation of data and it would be appropriate to have a date of conclusion which would perhaps coincide with the presentation, or conclusion, of a report.

I also wish to express the gratitude of this side of the House, and I am sure of the Tánaiste's side too, for the work done by the incumbent inspector, Mr. Justice Kinlen. He has made an extremely valuable contribution to the debate on prisons, some of which was critical. It was critical of all of us, including the Department, the Irish Prison Service, the Minister on occasion and of the Oireachtas. We all share in the responsibility for the state of some of our prisons and the lack of proper scope for people to ensure they spend their time constructively in prison and that there is a real prospect of them emerging not further entrenched in criminality but on the path to a normal citizen's existence. We owe a debt of gratitude to Mr. Justice Kinlen and for that reason, it would be appropriate that he continue in office for a period of time after the office he currently holds on a non-statutory basis is formally put on a statutory one.

I share completely the views the Deputy expressed about the current inspector. I very much admire Mr. Justice Kinlen and I am very grateful to him for all the work he has done as inspector of prisons. Anybody who argued that his job was lacking in independence need only look at the record to see that he is certainly not the cat's paw of any Minister or, in any sense, inhibited in what he says. He has served the country extremely well as inspector of prisons.

On the Deputy's amendment, I do not want to be in a situation whereby the legislation automatically puts the inspector into a position on the commencement of the new section. That is not appropriate in the circumstances but it is my hope that he will serve a further period in office as inspector.

The inspector's job is very important. There are aspects of the prison system and its management which need not simply inspection but radical reform. Things are happening in our prisons — one need only look at one's newspaper — which require dramatic change. It is important our system of inspection is robust and in a position to give the public a very clear picture of what is happening. However, inspection is not enough and change is needed.

Now that we have solved the overtime issue and are making decisions about infrastructure, we must get on with the business of humanising our prisons and turning them into rehabilitative places rather than purely punitive ones.

Undoubtedly, in many locations our prison system is so physically arranged as to be at best neutral and at worst helpful to the spread of crime, which is sad.

I genuinely welcome the Tánaiste's comments in respect of Mr. Justice Kinlen. Moreover, I recall doing radio interviews on the state of the prisons in the immediate aftermath of the dreadful circumstances surrounding the death of Mr. Gary Douch. The telephone calls received by some radio stations showed a complete disinterest in the conditions into which people are placed. Unfortunately, the attitude that they should be locked up and forgotten about was expressed too frequently and strongly. This is causing significant harm to society because recidivism is very strong. We must have a proper rehabilitation system that gives real prospects to those who have committed crimes to follow a path after prison of not re-offending and not returning to prison in a revolving door mechanism.

Although this point sometimes gets caught in the debate on how strong Members are as they flex their muscles on the criminal justice system, too many people are put in prison. Many people in the prison system are imprisoned for very short periods for relatively minor crimes and sometimes for non-payment of fines. I am aware all these matters are on the Tánaiste's agenda and Members must deal with them in the House in a collective way. However, I would certainly engage with the reforms signalled by him and Members should have the opportunity in future to ensure the prison system's character changes in the manner described by the Tánaiste.

Amendment, by leave, withdrawn.

I move amendment No. 24:

In page 23, between lines 41 and 42, to insert the following:

"(2) All appointments under this section shall require the approval of the Oireachtas and shall be subject to a transparent, open and merit-based selection process and shall involve published criteria for selection.".

I intend to discuss amendments Nos. 24 to 26, inclusive, together.

As they are related, amendments Nos. 24 to 26, inclusive, will be discussed together.

I apologise for not being present in the Chamber earlier as I was detained elsewhere.

In respect of two of these amendments, having read the proposals of the Jesuit Centre for Faith and Justice on this issue, I adopted a number of its suggestions, which were reasonable. Their acceptance would not tax the Tánaiste too much. Amendment No. 25 is intended to ensure the Minister did not appoint someone for a single year only by specifying a term of office. This would ensure someone could get to grips with this onerous job. He or she would have time to read him or herself into the job and to build up some credibility on the issues, which would allow the inspector to be approached by prisoners, prison officers, governors and the Minister to examine certain issues. Moreover, given the number of prisons, I do not believe that someone could fulfil the role fully within a term of less than three years.

Amendment No. 26 states "The Inspector of Prisons shall be provided with the staff and resources commensurate with the functions and duties outlined in this Act". This is simply to ensure the role of Inspector of Prisons has an office associated with it, which can deal with the workload in a proper and expeditious fashion to avoid delays in reporting.

Amendment No. 24 is intended to ensure the Houses of the Oireachtas have a greater say in making appointments and that such appointments are made on a merit-based selection process. This is a standard amendment in the case of ministerial appointments so that rather than the Minister simply selecting someone, such selections should meet with the approval of the Houses and that a mechanism would exist whereby people can see it does not constitute cronyism. While I do not suggest the Minister has been so involved, in the past the public has looked on some appointments on that basis. The amendment is to ensure those selected are the best possible candidates available for the job and that party politics does not enter the equation in this regard.

I am grateful to the Deputy for tabling these amendments. As for appointments, I am glad the Deputy has acknowledged that I have not engaged in cronyism. I wish to make clear that the office of Inspector of Prisons is an important public role and the person who takes it is expected to be independent in the discharge of his or her functions. I do not believe any successor of mine would appoint an unsuitable person. However, it is sometimes difficult to induce suitable persons to enter their names into a competitive process. If the process is open and transparent, the fact that one might be rejected or whatever makes it difficult to induce people to come forward. This is a highly significant problem. If one wants to get someone good to do a job, one cannot ask that person to accept the job and state that although one wants him or her to do it, he or she will be obliged to go before a transparent process and engage in a competition with others; and that the newspapers will find out about it and would discover whether the person was rejected. Many suitable people will decide they do not wish to go through such a process and do not wish to have the public querying the reason they were unsuccessful. Consequently, we should retain the current position.

Moreover, since my appointment as Minister for Justice, Equality and Law Reform I have been extremely careful, in all appointments that I have made, to be free from political bias. I have appointed people of all political opinions and of none to various positions. In such circumstances, it would be a mistake to require all appointees to undergo a competitive process that would involve public awareness that people had applied for a job and had been rejected for it. This would result in a lesser standard of appointee.

The Deputy suggests there should be a minimum term of three years and a maximum term of five years. I am against this because there may be occasions on which someone who is doing a good job requests a further year or whatever. Alternatively, someone such as a High Court judge who may be available in 12 months' time may ask to keep the post open for him or her for a short time. The flexibility that would be lost with the acceptance of a minimum term is invaluable.

As for staff and resources, such a statutory provision is not required. Were the inspector to find that his or her statutory resources are inadequate, he or she can say so. There would be strong pressure on the Minister to do the right thing by the inspector. A point in favour of the current incumbent is that he maintains an extremely lean operation. Inspection requires no more than a small and lean bureaucracy surrounding it and the main thing is that inspections should be carried out. This requires personal inspections on the part of the Inspector of Prisons, as inspections by persons other than the inspector would carry less weight.

I echo what Deputy Howlin stated about the Gary Douch death which, as the Deputy knows, caused me profound anxiety and worry and it is with regard to such issues that we must remember the role of the inspector is important. The "lock them up and throw away the key and who cares how they suffer" mentality is counter-productive because almost everybody comes out sometime and if they are treated in a sub-human way or we allow them to be treated by other prisoners in a sub-human way, we will pay the price afterwards. This is why we must have a decent standard in our prisons.

I have certain sympathy for the sentiments behind amendment No. 24. However, I accept the Minister's statement that it may be difficult to get suitable people to take the job if competition is involved. Under the US system, the Administration makes an appointment and the person then appears before a committee of the House. Such a system whereby the person would come before the appropriate committee of this House would be a compromise. It would clearly acknowledge the democratic role of the Oireachtas but would not create the competitive situation about which the Minister is justifiably concerned.

It is not debarred.

It is not prohibited.

Amendment, by leave, withdrawn.
Amendments Nos. 25 and 26 not moved.

Amendments Nos. 27 to 33, inclusive, and amendments Nos. 39 to 41, inclusive, are related and may be discussed together.

I move amendmentNo. 27:

In page 24, line 15, after "Prisons" to insert the following:

", his or her staff or persons authorised by the Inspector of Prisons,".

I will not labour these points. As I stated previously, a number of amendments came from reading the Jesuit Centre for Faith and Justice proposal. These are intended to strengthen this section of the Bill and ensure the inspector has the power to do his or her job adequately and properly without impediment. This is concerned with the staff, inspections of prisons and ensuring each prison or place of detention is inspected annually and that people have full access to copies of books, records and other documents required for them to carry out their duties and have access to prisoners and members of prison staff.

I do not want to get into too much detail on how the inspector is to carry out his or her functions. The Bill as devised states that the inspector is obliged to carry out regular inspections of prisons. Under section 31(2), the inspector is authorised to investigate any matter arising out of the management or operation of a prison and to submit to the Minister a report on such investigations.

It would not help to put the inspector into an administrative straitjacket as to what and how regularly he or she should carry out those functions. The current inspector does a good job and chose a good cycle of inspections. The powers and statutory framework within which the current inspector carries out his functions are adequate.

Amendment No. 31 tabled by Deputy Ó Snodaigh proposes that a person can raise any matter of concern in the course of an inspection or arising from an inspection. I will accept this amendment.

I will withdraw or not move most of the other amendments in my name.

Amendment, by leave, withdrawn.
Amendment No. 28 not moved.

I move amendmentNo. 29:

In page 24, line 18, to delete "obtain from the governor a copy of any record" and substitute the following:

"request and obtain from the governor a copy of any books, records, other documents (including documents stored in non-legible form) or extracts therefrom".

Amendment agreed to.
Amendment No. 30 not moved.

I move amendmentNo. 31:

In page 24, line 20, after "inspection" to insert "or arising out of an inspection".

Amendment agreed to.

I move amendmentNo. 32:

In page 24, line 22, after "the" where it secondly occurs to insert "Irish".

Amendment agreed to.
Amendments Nos. 33 to 40, inclusive, not moved.

I move amendment No. 41:

In page 25, between lines 8 and 9, to insert the following:

"(8) Any person referred to in subsection (7) who fails, without reasonable excuse, to comply with a request for information from the Inspector, made in the performance of his or her functions, shall be guilty of an offence.”.

This amendment creates a specific offence of failing to co-operate with the inspector. This is important in terms of supporting the work of the inspector, who has an extremely onerous task.

I appreciate the Deputy wants to make it clear through a message from this House that the inspector's demands are to be complied with, but I could have a HR problem with the people involved if I go down the road of criminalising people. I might find that lawyers would be involved——

The Tánaiste can be certain of it.

——in a way which would be difficult.

I understand the Minister's response. However, it is a good point. What procedures are in place to ensure everybody co-operates fully with the inspector in carrying out his or her duties which will be statutory duties under the Act? I thank the Tánaiste for circulating the draft prison rules and I must make the terrible confession that I did not read all of them since receiving them yesterday. Will this co-operation be on the basis of these rules or contracts of employment? Since the Minister states he does not want to put it on a statutory basis, on what basis will it be? How can we be assured that everybody will co-operate with the work of the Inspector of Prisons which we will put on a statutory basis?

I am not in a position to answer off the top of my head as to whether the prison rules as drafted provide for it. I will undertake that we will insert a paragraph in the rules to mirror section 31(7).

Amendment, by leave, withdrawn.
Amendment No. 42 not moved.

I move amendmentNo. 43:

In page 25, line 14, after "prison" to insert the following:

"transport vehicle, court cell or other such places used for temporary detention of a prisoner, which has been".

I appreciate what the Deputy is driving at. To be honest, transport vehicles could involve Garda cars and vans being inspected, and the amendment could also require the inspector to go to all the courthouses around the country to look at cells there.

They will all be closed down.

Courthouse accommodation is being upgraded.


There is no rehabilitative aspect in those courthouse cells. Most of them are now up to a good standard.

They are very temporary.

They are very bare and temporary and are simply places where a prisoner sits for a very short period. They are not a prison and are effectively under the jurisdiction of the Courts Service. I do not want to extend the inspector's role to that particular semi-State organisation.

Amendment, by leave, withdrawn.

I move amendment No. 44:

In page 25, to delete lines 28 to 30 and substitute the following:

"(3) The Minister shall, within 3 months of receiving a report under this section, cause a copy of it to be laid before each House of the Oireachtas.".

This type of amendment has been put forward by Fine Gael with many Bills, seeking to set down a specific timeframe whereby the Minister will have to lay a report before the Oireachtas. I am not suggesting the current Minister would delay putting a report before the Houses for any reason.

The Deputy would be right to suggest it.

It is appropriate that we should have a definite timescale so that a Minister could not be tempted to delay the publishing of a report for political or other reasons. From that perspective this amendment is worthwhile.

I support the amendment. The Tánaiste will recall that we discussed this matter on Committee Stage and if I recall correctly, the potential problem was if there was adverse comment, the Minister of the day would have to ensure proper constitutional function and people would have a right to respond. Legal advice might be needed in regard to expunging part of the report, and then there would be a question of whether it would be the same inspector's report. This was the experience in at least one report that was delayed.

The Oireachtas would understand if there was a reason for a delay, but there must be some timeframe in law. Otherwise my experience has been that Departments take it less seriously if there is no binding statutory provision that a report be presented to the Houses, or a reason be given for it not being presented. Often these issues fall off the agenda and important matters are not brought into the full light of day in a timely manner.

What the Tánaiste intends in this legislation is to have an annual report conducted in good time and presented to him in good time on a regular basis. The final step is to have the report published in good time on a regular basis. One would know there is a certain month in the year when the report of the inspector of prisons would be published.

There has been no undue delay in the publication of reports, with the exception of one incident where there was a disagreement on the content of the report. This was not from the perspective of its criticism but on the question of whether it was legal to be published in the form I received it.

When these reports come in, it is reasonable for Department officials to read and consider them.

Even for the Department of Justice, Equality and Law Reform, three months should be enough.

They should be in a position to draw to the Minister's attention aspects of the report that are critical.


If there is an aspect relevant to Government, the Minister should be in position to notify the Government that a particular report could have national or governmental significance. With the way bureaucracy works, a period of between eight and 12 weeks for the report to be digested and considered at the appropriate levels is reasonable. It is reasonable for the Minister also, if there is something egregious in a report before publication, to be in a position to go to the Prison Service and ask what is going on.

That is all we want.

Sometimes the Minister might have to wait for a response. The day the report is published the Minister will be asked what the response is to it.


If, for instance, there is an indictment of the prison system, the Minister should be in a position to have the other side of the story heard before he or she comments. One cannot just reply "I do not know" to whether an issue is right or wrong and look to find out if a matter is true or false. The public will not accept a Minister looking for time to answer such a question.

How long would the Tánaiste suggest?

Between eight and 12 weeks is sufficient.

That is all that is being asked for.

That is all we are asking.

There may be some particular reason. For example, there could be significant criticism of a particular governor.

Explain that to the House.

In that case, I would feel at the very least that I would have to be in a position to explain to the governor that this is coming down the tracks and that I would publish the report because it is in the public interest for it to be known. The governor would have the opportunity to tell his or her side of the story before I am asked to comment in public. This is reasonable and otherwise we could just say that the inspector can press a button and put it up on the Internet.

No, that is not suggested at all.

No, but I am just indicating the other extreme. I am not suggesting it should be done.

The three-month period is the norm but I do not propose to put it into legislative form. It is a reasonable period of time and it will only be in exceptional circumstances when it will not be met. For example, there may be injunctions etc. placed against the publication of a report.

That would be that then. If there is an injunction, there is an injunction.

They would be exceptional reasons. I do not want to put in place a statutory limit because it is unnecessary.

I cannot accept the Minister's explanation. If there is a court injunction it would supersede the legislative provision, and if a court indicates the report cannot be published until a certain time, it will not happen, irrespective of what is in legislation.

Of course.

The Minister has pointed out that there may be very serious issues in the report to be dealt with. If they would be so serious, they would need to be dealt with in a short period of time and could not be left to drag on. The Minister is suggesting three months is adequate and there is no reason that cannot be contained in legislation.

If there were any abuse of this or dilatory behaviour, the inspector is always in a position to indicate publicly that the Department is sitting on the reports. If the inspector makes such a statement, the Minister will be in the dog house. There is goodwill in these matters. If the inspector expects the reports to be acted on, absorbed and appreciated by the system of Government, the provision of a reasonable period of time is essential.

The policy is that the report should be digested and published as soon as is reasonable. I do not wish to put an exact number of days on it.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 45 to 48, inclusive, not moved.

I move amendment No. 49:

In page 29, between lines 5 and 6, to insert the following:

36.—(1) A prisoner who, without the permission of the governor of the prison, possesses or uses a mobile telecommunications device, or a person who supplies such a device to a prisoner without such permission, is guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 5 years or both.

(2) Subsection (1) applies also to a prisoner while in custody outside the prison.

(3) In this section "mobile telecommunications device" includes a component of such a device.

This is an amendment I indicated on Committee Stage I intended to introduce.

Prisoners are already prohibited from possessing mobile phones. As Deputies are aware, there are increasing concerns that mobile phones are being used by prisoners in contravention of the rules and, much more seriously, to direct or assist in criminal activities outside the prison. There should be no need, except in very limited circumstances, for a prisoner ever to have a mobile phone in his or her possession.

I therefore bring forward this amendment providing that possession or use by a prisoner of a mobile phone without permission or supply of a mobile phone shall be an offence. A person found guilty of this offence shall be liable, on summary conviction, to a fine not exceeding €5,000 or imprisonment for 12 months, or on conviction on indictment to a fine not exceeding €10,000 or imprisonment for a term not exceeding five years.

I have borrowed the phrase "without the permission of the governor" so that certain exceptions can be made. For example, the governor might allow a prisoner the temporary possession of a mobile telephone to receive an urgent call if there had been a death in the family, as part of a work training programme or if the prisoner was assembling parts of the telephone during a training exercise.

The expression "mobile telecommunications device" is being used to encompass technological advances in so far as possible. Possession of a component of such a device is also to be prohibited. Deputies will appreciate that there is a pattern involving individual prisoners with sim cards that can be installed in a mobile telephone hidden somewhere on the prison estate, enabling them to have private conversations over the mobile telephone network in a way that was not contemplated.

This is not an effort to be draconian; it is an effort to protect people outside the prison system from criminal activity directed from within it and to regulate and keep good order in the prison system. It is an effort to ensure the security of the system is maintained and that arrangements are not made, for example, for the introduction of drugs or alcohol. There have been recent indications that alcohol is being supplied to prisoners in contravention of prison rules, which I regard as a serious matter. It is not that I am a puritan on the subject of alcohol, but if a pattern of supply of alcohol within prisons by persons working within the prison system is tolerated, it will have a corrupting effect on the system. Both drugs and alcohol must be kept out of the system in all circumstances and without exception.

I am interested in this amendment, which the Tánaiste signalled on Committee Stage. Reports of drug overlords, to use a hackneyed phrase, running their drug empires from their prison cells are of serious concern. I do not know whether these reports are urban myths or the reality, but perhaps the Tánaiste is in a position to provide the House with some details on the extent of the organisation of crime from prisons using mobile technology. I do not know how much of this matter has been exaggerated by the media, but I would be interested in hearing the Tánaiste's assessment. Judging from the legislative measure proposed, which seems to be a response to a reality in the prison system rather than a preventative provision, I take it the matter is of serious concern.

On this amendment, which we have just seen for the first time, the Tánaiste has given the exemption of "without the permission of the governor of the prison". Does this phrase have further meaning? If the governor was sick, absent or away on holiday, is there an understood mechanism to deal with the issue, namely, a devolution of responsibility, or would it be ultra vires for someone else to give such permission in the event of an emergency? In most instances, the prisoner would be given access to a landline rather than a mobile telephone.

As we are enshrining a criminal offence, the possession of what other device or implement would constitute a criminal offence? Presumably, it is a criminal offence for a prisoner to have drugs. Is the prisoner punished under the rules of the Prison Service or prosecuted on the basis of a unique criminal offence? I presume the possession of an offensive weapon is also a criminal offence. Are these cases punished as criminal offences or are they captured by the prisons' disciplinary systems? Is this a stand-alone issue or is it part of a broad compass of criminal law relating to the possession of prohibited materials and goods by a prisoner?

I will not delay. The extent of the fines and the terms of imprisonment suggested for someone found in possession of a mobile telephone are bizarre. It would be different were someone found to be threatening a person, organising criminal acts or arranging the supply of drugs, but we are discussing the possession of a mobile telephone.

That is right.

The term of imprisonment of up to five years is substantial. I understand the concerns of the Tánaiste and others because the issue has been aired in the media. I do not disagree with the Tánaiste, but the scale of the imprisonment or fines is out of proportion to the act of possession.

If someone is organising a criminal gang or the delivery of drugs via mobile telephone, he or she should be prosecuted. We have a greater ability to monitor mobile telephone communications, an option the Garda should examine. Removing the mobile telephones supposedly in the prison population could be done by allowing greater accessibility to other telephones, which are monitored by prison officers or recorded to ensure nothing untoward is being done.

The supply of alcohol or drugs arranged via mobile telephones would be subject to similar provisions because it is an identifiable crime that can be dealt with. Alcohol is supplied from outside the prison. From anecdotal evidence, prisoners have a long tradition of producing alcohol.

Home brew.

Hooch. It has a greater effect.

That is a young person's shot.

Yes, but from what I have heard, one would not drink the stuff in prison if given a choice.

I would not drink it either.

One could lose one's eyesight. Prison alcohol has health and safety implications for prisoners. Under prison rules, governors and prison officers do not take the matter of alcohol in prisons lightly.

The provision is strange and came out of nowhere, as I was not aware that the Tánaiste was examining the matter. Perhaps we should reconsider the extent of the fines and the potential for five years imprisonment.

To be historical, prison rules provide for wine and so on to be sent to certain classes of prisoners. Those rules have fallen into desuetude and will be brought to an end, as the new prison rules will prohibit alcohol. There are good reasons for this, as alcohol in prisons affects the security and safety of prisoners seriously, starts rows and so on.

While I take Deputy Ó Snodaigh's point about hooch, it is an urban myth cultivated to cover up the fact that alcohol is smuggled into prisons. In those circumstances, it is easier to say that someone was drunk due to something he or she did in prison instead of saying that smuggling had taken place. The definition of "governor" in section 2 of the Act means the governor of a prison or an officer acting on his or her behalf. It means there is not a lacuna if the governor is on holidays. I do not want to say much here about the use of phones for the purpose of directing crime, but will talk privately to the Deputy afterwards. I am absolutely satisfied, however, that this is not an unreal threat, but I will not go further than that.

Mobile phones——

Has the Minister examined the notion of an electronic barrier?

We are in the process of installing counter measures in prisons, but I do not know whether they will be 100% effective or if ways may be found to get around them.

This is a very important point. It might be difficult to black out reception, say, in Mountjoy, because of its proximity to a hospital and its location. However, people who are suspected of using telephones should be moved to a prison where blocking technology is more effective.

That is a good point. I am not unmindful of those points.

It affects prison officers' phones as well.

What of it?

Yes, but prison officers are not supposed to have phones with them while on duty, so that is another point. They are tough penalties, but if they were not, on indictment, we would have problems arresting people who were attempting to smuggle phones into prison because the supply clause in section 36(1) applies to persons supplying a device to a prisoner without such permission. A person who attempts to do that will be indicted under the 1997 Act as an aider, abettor, counsellor or procurer and is liable to be punished for five years and liable to be arrested and detained. That is why those penalties are provided to that extent.

Is this a unique event or are there routine prosecutions for the other——

I should have said the criminal law applies both inside and outside prison.

Of course it does, but as a matter of routine is it applied?

There is a provision in the rules that the Minister can issue directions as to whether a governor shall be under a duty to report an incident to An Garda Síochána for investigation or whether an offence has been committed under the Criminal Law Act 1976 or under this rule. There has to be discretion.

It makes sense.

If one prisoner throws a punch at another we cannot have——

A Garda investigation.

——a situation where the Garda has to come in. There has to be discretion, but obviously in relation to serious offences the Garda should be called. It is a matter of judgment for the individual governor as to whether it is appropriate to bring the Garda in, because prisoners can be punished for minor infractions and for major infractions. A prisoner, for instance, who is found in possession of an improvised weapon, technically commits an offence under the law relating to offensive weapons. That prisoner might just be sent to Cork prison to spend three weeks there in a secure facility. It is a matter of choice for the governor to determine which way he or she will operate.

Amendment put and declared carried.
Amendment No. 50 not moved.

I move amendmentNo. 51:

In page 31, between lines 14 and 15, to insert the following:

"42.—The Minister for Justice, Equality and Law Reform shall make the necessary provisions for the closure of St. Patrick's Institution.".

This is taking the opportunity for the Prisons Bill to deal with St. Patrick's Institution. We have heard about the need for its closure over the years and the mechanism indicated in this amendment will ensure it is closed. It should have been closed many years ago. Those of us who visited the prison as delegates from the Joint Committee on Justice, Equality, Defence and Women's Rights — we visited Mountjoy and the Dóchas Centre as well — were aware of the problems at that stage and that was a number of years ago. The situation has not got any better. At this stage the Minister needs to make provision for its closure. I am asking that this amendment be included in the Bill so it happens forthwith.

I support the call for the closure of St. Patrick's Institution. There is not a Member of this House who does not agree with that, but it has gone on and on. I notice we have already lauded the Inspector of Prisons, Mr. Justice Kinlen. Repeatedly in his reports, and again in 2005, he has called for the closure of St. Patrick's Institution. He described it in his 2005 report as "a finishing school for bullying and developing criminal skills". I cannot imagine anything more shocking than the Inspector of Prisons, a former High Court judge, whom we all acknowledge as a person of substance, describing one of the institutions in which we incarcerate young people as a finishing school for bullying and developing criminal skills. A short timeframe must be laid down for the closure of this institution.

I am grateful to the two Deputies for raising the issue of St. Patrick's Institution. Following a review of the youth justice system, the Government agreed in December to a number of reforms, including amendment of the Children Act 2001, which has since been included in the Criminal Justice Act 2006, and the establishment of an Irish Youth Justice Service. The issue of the accommodation of juvenile offenders in child detention schools comes within the scope of those reforms. As of 1 March 2007, responsibility for all child detention schools, for the detention of children under the age of 16, has transferred from the Department of Education and Science to the Irish Youth Justice Service, which is an executive office in the Department of Justice, Equality and Law Reform under the political management of my colleague, the Minister of State, Deputy Brian Lenihan.

All young female offenders in detention up to the age of 18 will now also be detained in child detention schools. Young male offenders aged 16 and 17 will remain the responsibility of the Irish Prison Service until additional spaces have been provided for them in child detention schools. The construction of child detention school places, which can accommodate 16 and 17 year old males with the requisite facilities to provide care and education, will take a period of time to complete. As an interim arrangement only, males between 16 and 17 years are being detained in St. Patrick's Institution, as provided for under the Criminal Justice Act 2001, as amended by the 2006 Act. No child under 18 may be remanded or sentenced to a period of detention in any other adult facility.

We are working to a three-year timeframe so that by 2010 we will be able to scrap the existing arrangements. In the complex at Thornton Hall, there will be an area for younger offenders. To replace some of the secure facilities that are needed at the moment, it is not possible simply to——

What age group?

Between 18 and 21 years is the plan. I have to have some segregated facilities for younger offenders there. My intention is to bring the use of St. Patrick's Institution to an end as soon as I can. I cannot do it in the context of not having facilities built at Thornton. That is why this Bill is so important to both of those projects.

I welcome the fact that some of the facilities will be in place by 2010. St. Patrick's Institution, as it is at present, is not suitable for children and is in breach of the most fundamental principles of child protection. That was recognised ten years ago or more and it is one of the scandals that we, as a society, have not dealt with this properly and speedily. At this stage that facility should be fully closed. However, a delay of three years is understandable, because obviously a building has to be constructed, fitted out etc. The quicker the better, and that is the purpose of the amendment.

Amendment, by leave, withdrawn.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

It is not agreed.

The Deputy will have to shout louder.

I am shouting it from the rooftops.

Question put and declared carried.