Vol. 73 No. 11
The Chair received notice from Senator Kelly that he intended to raise on the Adjournment the following matter:
The failure of statements under the Prisons Act, 1972, to comply with the provisions of section 2 (6) of the Act.
Debate is confined to the Senator who raises the matter, and the Minister must be allowed sufficient opportunity to reply. The usual practice is that ten minutes, or more if possible, be given to him.
I should like to say I am sorry if because of this matter the Minister has been inconvenienced; I realise that his time is valuable and that he has serious worries which many of us share. The reason which has led me to put down this motion is not my desire to make any difficulties on account of a simple slip on the part of one of the Minister's subordinates. I want to make it absolutely clear that I would detest the action of any Member of this House who would try to make political capital out of a simple human error on the part of an official who, perhaps, may be over worked, or insufficiently instructed or experienced, or who may be a victim of the kind of elements which make us all operate at less than our peak.
It is important to draw the attention of the House to the fact that the rules which the Prisons Act, 1972 contains, and contains at the instance of the Minister, were not complied with for many months. Section 2, subsection (6) states that:
where a direction is given under subsections (3) or (5) of this section that statements specifying the giving thereof and the names, the offences or the offences with which persons are charged and where appropriate the sentences of the persons concerned, shall be laid before each House of the Oireachtas as soon as may be.
The House will recall that this was an unusual Act and an exceptional measure. It was represented to both Houses by the Minister as such, and its exceptional nature is signalised by the fact that it has a limited duration. Unlike most other Acts, it is due to expire on a given date: in 1974. The necessity for this Act, as the Minister explained —and nobody on this side of the House questioned the good faith of the Government in pressing their necessities to the point of legislation—was a serious riot in Mountjoy which meant that the prison was no longer adequate to contain the number of people there and that they had to be accommodated elsewhere. The "elsewhere" meant the Curragh. A number of them were shifted to the Curragh without legal authority, because the warrants of committal, under which they were being held, referred only to a prison and not to a military barracks. In bringing in this legislation, the Minister explained the position fairly and nn Opposition Member of the Seanad or Dáil questioned his bona fides or the emergency which had arisen.
There are several things in the Act which are here because, I presume, they were intended to act as safeguards. One of these was the subsection of section 2 which requires a statement to be laid before each House specifying the giving of a direction whereby a person is moved either into military custody under subsection (3) or out of military custody under subsection (5). During the summer I looked at the orders under the Prisons Act which had by then accumulated in the Library of the House and I found that although the first such order corresponded well enough with what subsection (6) of section 2 required, the subsequent orders did not correspond.
The first such order said that the Minister for Justice had given a direction in respect of 34 prisoners under section 2 subsection (3) which is the subsection dealing with transfers into military custody. It specified the prisoners and their sentences. The first statement made on 31st May is, I think, by and large, in order, although I am not entirely sure. There were subsequent statements on 2nd June, 23rd June, 29th June, 5th July, 12th July and 13th July which were not in order.
This may look like a technicality to Members of the House, but in fact the things lodged before this House and before the Dáil purporting to be statements laid before the Houses under subsection (6) did not specify the giving of any direction by the Minister, they simply said: "Statement pursuant to section 2 subsection (6) of the Prisons Act".
It was impossible to gather from these statements whether the prisoner concerned was being transferred into or out of military custody. The place of detention of the prisoner was mentioned at the bottom of the sheet, but it did not say whether this was the place of detention at the time when the direction was given and from which he was now going to be shifted, or the place of detention to which he was in the process of being moved. In other words, if I were relying merely on these statements in order to discover what exactly was going on in regard to specified prisoners I would not have known what was happening.
Apart from that, the form of the statements did not correspond with what the Act required, namely the specification of the direction given by the Minister; and had that statement being anything equivalent to a warrant it would not have been a lawful authority for holding a prisoner anywhere. I am not saying the statement was equivalent to a warrant, but it was a concomitant feature of legislation under which an unusual act in regard to a person's custody was being performed. I do not want to raise a scare to the effect that people were being illegally held. But the thing is sensitive, because it is too near the question of personal liberty to be treated lightly; and if the Act directs that the Minister must specify that a direction had been given, then the Act ought to be obeyed to the letter.
I am open to correction; I am sure the Minister's officials will be there to nail me if I am wrong. I put down a Motion in this House within half an hour of spotting this, and I tried then to raise it under Order 26 of the Standing Orders, and I did not succeed in doing so; but some message must have got through to the Department of Justice, because statements subsequently put in on the 31st July, 25th October and 31st October, represented a "mended hand" in some degree, because these subsequent statements said that the Minister had given the direction of the type specified and indicated where the prisoner was being brought from and where he was going to. Even these statements were defective, in that a couple of them did not conform with the requirement of the Act that the offences should be specified.
In the case of one prisoner, according to a statement laid before the House on the 31st October, he was serving a sentence in connection with an offence under the Offences Against the State Act, 1939, Part V. That might be anything, because under that part of that Act any offence can be scheduled for treatment by the Special Criminal Court, and that part of the Act itself creates a special offence in regard to failing to give an account of one's movements. There is no limit to the number of offences which that might have covered, and I find now that the prisoner concerned was convicted of offences under the Firearms Act and also of conspiracy to murder. The only information before either of these Houses was the general information which might have told you nothing but that he was imprisoned under the Offences Against the State Act, 1939, Part V.
A prisoner whose transference was stated to this House on the 31st July was noted as having committed an offence against common law. A lay man might know that there are innumerable offences against common law—for example, arson, murder or rape. That is not a specification of an offence on which anybody can be convicted; and if the Minister or myself or anybody else were indicated as having been "in breach of common law" the indictment would be held bad because it is no specific enough, nor is it specific enough for the purposes of this Act. The prisoner concerned was in fact—this is significant for the sloppy way the thing has been done—not convicted of an offence against common law alone. He was convicted also of an offence under the Vagrancy Act. Because of encounters which I have had with the Minister in the past I know he will. I do not wish to "soup up" this matter and that was not my intention when putting it down. I do not wish to pillory the slip on the part of an official who may be much overworked, and who may not attach a great deal of importance to the matter. However, before serious consideration can be given by this House the question must arise as to the legality of these transfers and if the concomitant conditions imposed on the Minister in regard to laying statements before this House had not been complied with, and also regarding the larger question of security.
The Minister's Department have mended their hand within the last 24 or 48 hours by lodging an amended statement before both Houses in which the whole matter is put right. Since 20th November, 1972, we now have a full statement of under which subsection transfers have been made, of where people were taken from, where they were brought to and what their offences were. I spotted this by accident in the Library a couple of hours ago, but without having gone through it with a fine comb I accept that this document now gives the House the information we need.
Let me put on the record of the House the way this document begins: "Some of the statements presented pursuant to Section 2 (6) of the Prisons Act, 1972 appear on re-examination to require amendment or elaboration in certain respects, e.g., in six statements the opening words were inadvertently omitted."—These opening words purport to confer legitimacy on the whole operation—"In others the offences were not in all cases described in sufficient detail. The following corrective statement has, therefore, been prepared. It supersedes the information given in the relevant previous statements."
I regard that as honourable amends on the part of the Minister's Department. So far as I can gather from this new statement the prisoners concerned in these transfers to and from the Curragh are political prisoners. I am not sure of that, as some convictions may be non-political. There is an absence at first sight of the kind of offence one would associate with the ordinary person who clutters up the District Court every day of the week. A cursory glance suggests to me that these are mostly political prisoners. If that is the case the question of security comes up.
Does this come within the question before the House?
I do not want to get into handigrips with the Minister now, but it is relevant in order to demonstrate to the House the importance of accuracy in laying these statements before the House. If I am right in thinking that these are mostly political prisoners I relate this to an event which occurred in the Curragh Camp on the 29tth October last when seven escaped. Is the security of the Curragh Camp any better than it was in Mountjoy?
This has clearly nothing to do with subsection (6) of section 2. I am not responsible for the Curragh Camp to the Oireachtas. It is a different Minister. Questions such as this should not be raised on this motion.
I do not want to annoy the Minister. I have already apologised to him. Too many apologies take place in this House and too many compliments are paid to Ministers, but I must say what I feel entitled today if the Chair will allow me. This House has a reason to expect that the statements laid before it will be accurate. The whole purpose of this is to enable the House to decide whether there is a substantial reason for transferring people into military custody or transferring them out of military custody. On the 24th May last the Minister stated before this House——
I must protest. It is most unfair to put down a question relating simply to the contents of particular statements and to broaden that into a debate on the question of who should or should not be sent to the Curragh or whether it is secure enough. These matters are outside the question and outside my responsibility to Parliament. I am not the Minister for Defence.
I am sorry the Minister is taking this attitude. I will give him plenty of time to reply.
The Senator has only two more minutes whether he likes it or not.
It is not a matter for decision by Senator Crinion how long I speak and I will not be said by him.
On the 24th May last the Minister stated here, at column 1019, Volume 72 of the Seanad Official Report, that not only would he give the details which the Act requires him to give, but as a matter of practice he would also give the reasons which led him to direct transfers. I said to him "I am sure this Minister would"—I am not so sure about it now—"but would the next Minister or the Minister after him"? Mr. O'Malley replied "If he did not, he would be open to strong criticism. He would be asked why did he suddenly decide out of the blue to transfer people to military custody, presuming there were no people in military custody at that particular time".
I realise the Minister is not in charge of the Curragh Camp, and I know well he is not in the position of a centurion there who says to one man "come and he cometh and to another go and he goeth". The point is, the Minister is in charge of deciding whether someone should go to the Curragh or not. He must have some responsibility in regard to security if he has reason to think that the Curragh is not a safe place to keep prisoners who are there on deadly charges and on deadly convictions.
This is the whole purpose in laying these statements before these Houses, so that we can make our minds up whether this unusual procedure is justifiable or otherwise. I observe, on looking down the amended list which was supplied by the Department the other day, and comparing it with the list of prisoners which was issued after the escape on the 29th October last, that several of the prisoners were there on very serious charges. It is significant that one of these prisoners had been only four days in the Curragh. Presumably they had been working for weeks on the escape tunnel. In other words the chain of command in subversion in the Curragh is so strong that within four days a man can be channelled to an escape operation.
I must protest at the failure of the Chair to keep this debate within the Rules of Order.
The Chair is endeavouring to do so.
It does not matter to me or to the Government what Senator Kelly is saying. It is most improper that notice should be given on one question and matters that are relevant to an entirely different Department and Minister debated.
I am not suggesting that it was because the Minister for Justice was asleep at his post, dozing over his bayonet——
The Chair would ask that the debate be continued in an orderly fashion and in accordance with the subject matter of the Motion on the Adjournment. There are only ten minutes left and I must call on the Minister to reply.
I had finished. I wish to restore peace with the Minister. The Minister knows perfectly well that I have never countenanced subversion and I have never obstructed him in his fight against it. I have some admiration for his own personal conduct in this whole matter. It is relevant to say all these things. I have to do so in order to make this question which I have raised here this evening appear more than what Senator Ó Maoláin, if he were here, would describe as "a bottle of smoke". The question of who to transfer and where to transfer is a very important one. It is relevant to ask the House to take note of the fact that the regulations placed before it have not been observed until the day before yesterday.
I wish to put on record in as orderly a fashion as I can that, in my opinion, it is wrong that the Minister for Justice should be brought in here on a specific question and in the course of that the Minister for Defence should be attacked for some alleged failure on his part or that of his servants.
You know very well I did not attack anyone.
Not half.
The Minister to continue without interruption.
That is only my personal observation. It may well be that it is in order to do these things. I must confess I would have thought it was not.
I do not know if it is in order for you, Minister, to pass remarks on the Chair.
The Chair, I am sure, can look after itself.
The Minister to continue without interruption.
Rarely has a matter as trivial as this been discussed in either House of the Oireachtas. In fact, I was not aware until I heard of the proposal to have this debate that there was power to raise matters on the Adjournment of the Seanad. I should have thought that matters of somewhat more substance might be more profitably discussed.
Would the Minister deal with the subject and not teach us all a lesson on how to do our business here?
I would not be foolish enough to attempt to teach Senator Kelly anything. I am perfectly aware, as I am sure is every other Member of the House, that Senator Kelly is an expert on everything, has nothing to learn from anyone and teaches all and sundry at all times. It is a pity that in such a small matter as this Senator Kelly makes things so unpleasant and has "digs" at everyone, including Ministers who are not before the House and civil servants who made a trivial clerical error. It is necessary to put the lack of conformity with subsection (6) of section 2 of the Prisons Act in perspective. I do not wish to minimise the desirability of having the particulars in these statements accurate in every detail. My anxiety in this regard has been demonstrated by my having the previous statements which contained minor errors corrected in the revised statement which I laid before each House of the Oireachtas on Monday last.
Only because you knew I was going to raise the matter.
It goes without saying that I regret there should have been inaccuracies in these statements. On the other hand, it is only right to say—again to maintain a proper perspective about this whole affair—that there is no suggestion that the matters to which Senator Kelly has referred tonight could in any way have affected the validity of the detention of the persons transferred to military custody or could have prejudiced them in any way. These statements are simply evidence for the Members of the Oireachtas of the fact that certain people have been transferred to military custody or back from military custody to civil custody. Nor can it be said that the primary object of laying the statement before the Houses of the Oireachtas was not fulfilled in substance, that is, that the Members of the Oireachtas and the members of the general public, including people who might have a special interest in the whereabouts of a particular prisoner, would be in a position to know that he was in military custody and where he was. Each of the statements, even those which had the opening words omitted, indicated who the prisoners were and each of the statements indicated where they were detained.
That is not so.
It is so.
The Minister to continue without interruption, please.
Let us please have some order here. The Minister must be allowed to continue without interruption.
I repeat that none of these statements, notwithstanding minor inaccuracies, could have misled anybody. They said who the people were and where they were.
The details regarding the nature of the offence and, in the case of convicted prisoners, the sentence imposed could not be said to have the same degree of importance.
Would the Minister tell me——
Senator Kelly is a moody person.
The Chair is endeavouring to do its best. I must call the Senator to order and I must take exception to the Chair being addressed in such a disorderly fashion. The Minister must be allowed to continue without further interruption.
In great measure the inaccuracies as to details of sentences, et cetera——
Senator O'Higgins on a point of order.
On a point of order, in view of the manner in which the Minister has addressed the Chair he should apologise to the Chair before proceeding.
I apologise if I have offended the Chair in any way. The Chair will appreciate that the very short period at my disposal has been interrupted a number of times.
The Chair has been endeavouring to conduct the debate in an orderly fashion. The Minister should be allowed to continue without further interruption.
——resulted from insufficient information being available on the committal warrants and from the details having to be ascertained by telephone with the consequential risk of misunderstanding. The problem was accentuated by the extreme pressure to which the division concerned in my Department has been subjected for some time past combined with an unusual turnover of staff. I have given directions that for the future these statements are to be subjected to stringent checks to ensure their accuracy. I have no doubt there will be no repetition.
I now wish to refer to what Senator Kelly stated in relation to my remarks at column 1019, Volume 72 of the Seanad Official Report. I said that, as a matter of practice, I would give the reasons anyway. These were the reasons why people were being transferred. Senator Kelly has alleged that I did not give them. What was under discussion at column 1019 was not these statements under subsection (6) but the actual transfer orders either to military custody under subsection (3) or from military custody under subsection (5). The reasons for their transfer are set out in these orders.
I must ask Senator Kelly to allow the Minister to conclude.
The Minister is misrepresenting what I said.
No matter what I say it will not satisfy Senator Kelly. I wish to refer to one other matter in relation to this. I feel it is something which was unfair. There was a mistake in a particular statement. The offence with which the man was charged was stated to be under Part V of the Offences Against the State Act, 1939. That was an error. It was too vague.
Senator Kelly went on to say that, not alone was it just but it was a lot more. He went on to say that the man was convicted of conspiracy to murder and a variety of other very serious crimes. In fact the man has not been convicted. As far as the courts and myself are concerned, the man is innocent. This would not matter if it were not an identifiable prisoner but unfortunately it is, because the date has been given and there is only one man named in that particular statement. This shows the dangers of trying to be too good at this sort of thing.
On a point of order.
The Minister is about to conclude.
This is a desperately important point of order. The Minister has suggested that I have enabled somebody to be identified and I have attributed to him the conviction of which he has not yet undergone because he has not yet been tried. I defy the Minister to tell me from the statement, which is the only thing I have to rely on, whether the man is still on bail, on remand, has been tried or charged or what, because the statement does not say.
That is not a point of order.
Offences with which charged, not offences with which convicted.
It just says that the Minister has——
The debate has gone a couple of minutes over the normal time and the Chair has given ample opportunity to both Senator Kelly and to the Minister. We must conclude the debate now.
I see now that I am wrong. I beg the Minister's pardon.
Senator Kelly mentioned on the Order of Business that he proposed to withdraw motion No. 20 in his name.
The Seanad adjourned at 10.06 p.m. until 10.30 a.m. on Thursday, 23rd November, 1972.
