Amendments Nos. 1, 2, 4, 13, 74, 80 and 81 are related and may be discussed together by agreement.
Prisons Bill 2006: Committee Stage.
I move amendment No. 1:
In page 6, line 5, after "his" to insert "or her".
This amendment is entirely technical in nature and refers to the definition of "governor". As a general rule, the practice in legislation is to refer to gender-neutral terms such as "member", "practitioner", "officer", "Minister", etc., in a gender-neutral fashion by using the phrases "him and her" or "his or her". I presume it is merely an omission on the Parliamentary Counsel's part that, in the definition, the governor is referred to only in masculine terms. However, this omission does, perhaps, betray outdated stereotypes.
I support the amendment because there are several women governors in our prisons.
I accept the amendment.
Will the Bill cater for people in designated centres, as described under the Criminal Law (Insanity) Act? If the answer is "Yes", we would need to include an amendment in respect of the definition of "prisoner". It is important to ensure people who may be brought to court from the Central Mental Hospital or from court to that institution or another designated centre be catered for under the Bill. In my view, the definition of "prisoner" should be expanded to include the phrase "or a designated centre under the terms of the Criminal Law (Insanity) Act 2006".
I am somewhat concerned about this notion. Perhaps I did not fully understand the argument put forward by Senator Henry. I am aware that a number of people are concerned with regard to the stigmatisation of individuals, but I am sure the latter was not the Senator's intention. I put on the record of the House last week the view of a senior doctor who is concerned about such stigmatisation, particularly in light of the location of the new Central Mental Hospital in the grounds of a prison. He made that point in a slightly different way from Senator Henry. He felt people who committed acts as a result of a delusion for which they were not responsible, which would objectively be viewed as criminal, should not be regarded as criminals. The word "prisoner" carries a degree of criminal association and, while I agree with the thrust of Senator Henry's contribution, we ought to be terribly careful in case we unwittingly criminalise and further stigmatise those who suffer from a medically definable condition rather than a criminal personality.
I assure the Senator this is not being done to stigmatise those who are mentally ill but to ensure absolute clarity. While a criminal act may have been carried out by such people when they suffered from hallucinations, delusions and so on, by the time they are dealt with, they could be perfectly rational because of treatment. I am trying to establish whether the Minister proposes to segregate individuals admitted via the Central Mental Hospital, for example. While we do not need to discuss the prison escort service because the problem has been solved, my anxiety relates to whether these individuals will be stigmatised by being segregated. I agree with doctors who say it is not suitable to put a hospital on the same site as a prison and I have raised this several times with the Minister. I wonder how people who are mentally ill will be dealt with when they are moved from hospital to prison. The Minister has also made provision for children, another group about whom I would like clarity.
Senator Henry has tabled a proposal to extend the audio-visual provisions in section 33 to persons detained. I would like to examine the implications of such a move, the question of prison transport and the implications of extending the concept of "prisoner" to the categories of persons to whom she referred between now and Report Stage. This has negative and positive implications and far be it from me to get involved in a quarrel between the two Senators in the College of the Holy and Undivided Trinity.
We are on the same side regarding the welfare of people.
However, I must reflect further on this and I am grateful to Senator Henry for raising the issue. I cannot accept amendments along those lines now.
I cannot make an amendment on the floor of the House but I would be grateful if the Minister examined this issue, which I will also consider again.
Amendments Nos. 5 to 11, inclusive, are related to amendment No. 3 and all will be discussed together.
I move amendment No. 3:
In page 7, subsection (1), line 2, to delete "Government" and substitute "Oireachtas".
The effect of the amendment would be to ensure no contract for the privatisation of prison services would be entered into without the approval of the Houses of the Oireachtas. Such an important process should be subject to non-governmental scrutiny.
Amendments Nos. 5 to 11, inclusive, seek to put safeguards in place for private prison custody officers. I have grave concerns that those who might be appointed to this position could lose the run of themselves. We must be very cautious in framing the legislation where it outlines their statutory duties. It must be borne in mind that if they act outside the scope of constitutional or lawful behaviour, the State will ultimately be vicariously liable for their actions. These safeguards for the State must be carefully examined.
With regard to the proposal that the Oireachtas and not the Government should decide the contracts, the Attorney General's office advises that a decision in this regard is most suited to the Executive.
Amendments Nos. 7 to 9, inclusive, insert additional conditions on the performance of functions by a prison custody officer, including that he or she must demonstrate respect, ensure the safety, security and well-being of prisoners in custody, behave in an appropriate manner and act in accordance with the law. I am advised by the Parliamentary Counsel not to accept these amendments on the basis they are covered by section 6(6), which states that a certificate is not issuable unless the person in question "is of good character, is capable of performing the functions of prisoner custody officer, has undergone such course of training relating to, or has such experience of, custody of prisoners as would, in the opinion of the Minister, enable the person to perform the functions of a prisoner custody officer in an efficient manner, and is otherwise a fit and proper person" to be appointed. That provision is as broad as it needs to be, as I do not wish to be too detailed because people read things into detailed provisions that were never intended. Everybody treats prisoners with respect but primary statute law does not make provision for a full-time prison officer treating a prisoner with respect. It is not necessary to place specific obligations on a prison custody officer which are not even applied to a prison officer during his or her work.
Section 6(6) does not cover the issues I raised. When claims are made against the State regarding custody officers, it will be too late. These amendments should be made.
There is middle ground between myself and the Senator. Section 6(7)(b) states that a condition of the certificate is that the custody officer complies “with the provisions of this Act and any prison rules relating to the treatment of prisoners in custody”. I can apply any rules I want in the area to guarantee the safety and welfare of prisoners. It is not as if they are excluded from the ordinary rules governing prison officers and their treatment of prisoners.
While the Minister can apply any rules he wants, I refer him again to the my concern about people who may be mentally ill at the time they are transferred by the prison escort service. Will the custody officers receive psychiatric nursing training?
The Minister can make rules and, while section 6(7) covers the issues I raised to some extent, the Minister should be more specific.
Custody officers must receive training, as appropriate, under the legislation. Every prison custody officer will not have to be a fully trained psychiatric nurse.
I did not suggest that.
Mr. M. McDowell
It depends. For example, a prisoner suffering from schizophrenia could be moved from a prison to a psychiatric hospital and it may not be appropriate or practical to have him or her accompanied by an officer with psychiatric training. We cannot have a situation in which someone cannot be moved and must be left untreated because a person with psychiatric training is unavailable at the time. We must be reasonable in these matters.
The custody and welfare of prisoners, many of whom are psychiatrically unwell — there is a high degree of psychiatric illness among prisoners — involve their being moved from A to B, but I cannot be put in the position of saying that one officer is suitable while another is not. The training must be general. I cannot operate on the basis that every prisoner who is psychiatrically unwell should be dealt with by a psychiatrically trained prison officer in routine transactions within the Prison Service.
Moving prisoners from A to B is one issue, but what about moving them within the Prison Service, such as from block to block, to their meals, to training, education or fitness classes or so on? If I go down the road of specifying that a different category of prison officer must be present if a prisoner is being moved from A to B, I would be creating an obstacle to the effective custody of those prisoners without much benefit.
The Tánaiste could not make the measure obligatory because such a prison officer cannot be supplied in every case, but could we not make it a recommendation? I would not like to be asked to take from one place to another someone who is experiencing an acute schizophrenic episode.
We need officers who are trained to deal with such people. The amendment asks that the people transporting prisoners be trained.
I do not propose to impose upon the custody officers a degree of training or skills that I would not impose on an ordinary prison officer asked to do the same function. No additional danger is posed by the fact that a person is being dealt with by a prisoner custody officer rather than by an ordinary prison officer.
Section 6(6)(c) requires that the person “has undergone such course of training relating to, or has such experience of, custody of prisoners as would, in the opinion of the Minister, enable the person to perform the functions of a prisoner custody officer in an efficient manner”. This is as good as the provision can be and I do not see how I could go much further.
I failed to address amendment No. 11 in the group. It is a technical amendment, the function of which is to expand the definition of "applicant" to address all eventualities. The definition in the Bill is insufficient.
Amendment No. 11 proposes that the definition of "applicant" would also include a person who makes an application for a certificate on behalf of another person. The current definition makes it clear that "applicant" includes a person who applies for a certificate and a person on whose behalf someone else applies for a certificate.
The original wording is broad enough to address an applicant. If one examines page 9, the first definition in section 6(16) states: ""applicant" includes a person on whose behalf another person applies for a certificate". Senator Cummins's adviser is shifting a definition from one part of the section to another.
Our amendments are more specific and would suit the legislation better than its current provisions.
I move amendment No. 4:
In page 7, subsection (4), line 14, to delete "the Garda Síochána" and substitute "An Garda Síochána".
I will not accept the amendment. During the course of the debate on the Garda Síochána Act in the Lower House, Deputy Jim O'Keeffe pointed out that the phrase "the Garda Síochána" was used extensively in the original 1920s legislation. He stated that what was good enough for Kevin O'Higgins was good enough for him, which will have a strong effect on Senator Cummins.
We have discussed the amendment.
I am trying to standardise the situation in all statutes. The proper name of "An Garda Síochána" should be included. The Tánaiste turned down a request for a similar amendment to the Criminal Justice 2006 Act, but the correct term of "An Garda Síochána" should be applied. As the Tánaiste has indicated that he will not accept the amendment, we will probably press it on Report Stage.
Amendments Nos. 12 and 14 to 18, inclusive, are related and may be discussed together by agreement.
I move amendment No. 12:
In page 9, subsection (1), line 21, after "person" to insert "without delay".
This is a technical amendment to make it clear that the Minister should not delay in revoking a certificate, which should be done as speedily as possible.
On amendment No. 14, there is no indication in the Bill as drafted of the timeframe in which the Minister must deal with a complaint under section 9(9). A complaint of this nature should be considered as a serious issue and be dealt with as a matter of priority. These inserted subsections would ensure that the Minister deals with the matter promptly, but they would also ensure that the person complained about would not be permitted to work until such time as the matter is resolved.
The suspension of a prisoner custody officer would be in keeping with other provisions of the Bill whereby pending the decision of the Minister to renew a certificate, a prisoner custody officer may not continue to work. In effect, a similar situation exists in this instance. Pending the decision of the Minister, a prisoner custody officer should not be allowed to work. In the event that the accusation is correct or well founded, the amendment would ensure that there would be no opportunity for the prisoner custody officer to deal out punishment or retribution on the complainant.
On amendment No. 17, searches of a person involve the violation of important rights. I recognise that searches are sometimes required for the safety of prisoners and that prisoners submit themselves necessarily to a regime that involves violations of privacy at many different levels, but the Bill falls short in terms of its safeguards to protect all prisoners from unwarranted intrusions in their rights.
The amendment represents a simple reporting structure whereby there would be a record of every search and an explanation of same. The amendment's effect would be to protect the prisoner's rights and to shield the prisoner custody officer from any unjustified accusations or unfounded complaints.
Amendment No. 18 is a technical amendment that is dependent on the acceptance of amendment No. 17.
The proposals in these amendments to prevent delays are important but I am much taken by amendment No. 18. If we are to transfer people to designated centres using a prison escort group we should include a definition of designated centres, because the definition of prison in the Bill does not cover the Central Mental Hospital, nor should it.
I tabled my amendment so that in the case of suspected concealment of a prohibited item, the privatised prison officer could require the removal of clothing but would not be allowed to perform an intimate search. I would like the Minister's comments on that.
I cannot accept the proposal in amendment No. 14 that a prison custody officer not be allowed to perform the function pending a decision relating to a complaint. That would mean prisoners could effectively wipe out prison custody officers by making complaints. If such a provision were applied to prison officers at the moment we would have chaos in our prisons. It does not make any sense to make a provision in respect of a prison custody officer that would not be made in respect of a prison officer.
Amendment No. 15 is a Government amendment substituting the term "functions" for "powers". The Labour Party amendment concerns the provision whereby a prison custody officer is prohibited from requiring the removal of a prisoner's clothing, other than outer clothing, unless he or she has reasonable grounds for believing that the prisoner has concealed a prohibited article. It is the intention that intimate searches only be conducted in accordance with prison rules. I cannot allow people in transit to be dealt with differently depending on the identity of the person in whose custody they are. We are trying to keep drugs out of prisons and I want an effective system in which prison rules will be capable of applying.
All matters relating to reporting obligations, as in amendments Nos. 17 and 18, are capable of being dealt with by rules. A mandatory context by way of primary statute is not appropriate.
The Minister mentioned prison rules, which reminds me that I missed my first amendment, with which it was concerned. The definition of prison rules is somewhat flawed by only applying to rules in force. If new rules were made, repealing old rules, the old rules would no longer be prison rules for the purpose of any ongoing disciplinary proceedings or proceedings before the appeals tribunal. I mention that amendment in case the Minister wants to reconsider it and its associated issues before Report Stage.
Is it absolutely clear in section 8 that prison rules still apply to the prisoner custody officer relating to intimate searches?
I have considerable sympathy for Senator Tuffy's earlier amendment but the Parliamentary Counsel was not keen for me to accept it. However, I can see its force and, between now and Report Stage, I will look at it again and consider if the rules referred to are those in force at a material time rather than any which might have been repealed. It may depend on the Interpretation Act and I do not want to suggest the Parliamentary Counsel is wrong in this respect. Under the Interpretation Act, certainly in respect of enactments if not statutory instruments, the repeal of something does not affect an ongoing procedural inquiry.
Amendments Nos. 19 to 22, inclusive, are related and may be discussed together by agreement.
I move amendment No. 19:
In page 11, subsection (1), line 28, to delete "information" and substitute the following:
"information, other than to a governor or a contractor,".
The function of these amendments is to protect the privacy of prisoners. Simply being in prison should not expose a prisoner to personal information about him or her being given to unnecessary third parties. While some information about prisoners is a matter for public record, other than the information detailed in amendment No. 20 a prisoner should be entitled to all the common courtesy and respect that any citizen would expect. I know the Minister has a preference for leaking information at times but others might hold his office in the future and I ask him to legislate with them in mind.
I never leak information. If I disclose information it is in full conformity with the Official Secrets Act. One of the functions vested in a Minister is to determine whether to release information in the public interest under that Act. I am accountable to Dáil Éireann for the way I carry out my duties and perform my functions. I emphasise that I do not leak information.
The Senator's amendment raises an important point. Pointing the finger at the Minister is completely off-target but there is a habit of providing information on criminals to some people in the media. However, I assure the Senator it never comes from the Department of Justice, Equality and Law Reform. I do not know from where it comes or wish to point a finger at somebody else but there seems to be a regular pattern whereby petty information about prisoners appears in the public domain.
I move amendment No. 23:
In page 12, between lines 9 and 10, to insert the following subsection:
"(4) A report produced under this section shall be laid before the Houses of the Oireachtas not later than 31 May in each year.".
Under section 10 a report on the performance of a contractor must be supplied to the Minister by 31 March each year. This is an important document, particularly in terms of guaranteeing transparency and best practice. It is logical that it should also be laid before the Houses of the Oireachtas. Unfortunately, the Bill makes no provision for such sharing of information between the Department and the Oireachtas. This amendment would ensure not only that the report would be laid before the Houses but also that it would be done in a timely fashion, permitting scrutiny of and debate on the matter.
I support the amendment. Sometimes it might be six months before a report is laid before the Houses of the Oireachtas. There is no good reason that this should happen. Two months appears to be long enough.
I do not intend to accept the amendment. There is a Freedom of Information Act and if information is appropriate to be put in the public domain, in other words, if it does not contain security or confidential material, it will be available in that way. I cannot simply state that every report on every contractor in every circumstance goes into the public domain, any more than I would state as much about any report about a prison officer or a number of prison officers who, at present, conduct transport services on behalf of the Prison Service. I cannot give a guarantee that a written report concerning them automatically goes into the public domain. The Freedom of Information Act provides a proper balance between confidentiality, security and transparency and is the appropriate way to deal with this.
I raised the issue of timing. The reports should be produced in a timely fashion. If there was anything in the report of a confidential nature or related to security of the State, it could be excluded. The proper way to do business is to lay these reports before the Houses to be examined and debated, if necessary.
Senator Cummins has made a good point. There are plenty of ways whereby those parts of the report which are considered sensitive can be excluded.
This section provides that an officer of the Minister is to monitor the performance by a contractor of his or her functions. A person appointed as a monitor "shall, not later than 31 March in each year, prepare and submit a report to the Minister on the performance by a contractor of his or her functions under an agreement in respect of the year immediately preceding the year in which the report is so prepared and submitted". Under this section, somebody in the Department would have the first three months of every calendar year to prepare a report on how the contractor had functioned in the preceding 12 months. That report would be given to the Minister. If it has no significance in terms of security or confidentiality, it will be available in the Department under the freedom of information legislation. However, if it did have such significance, it would not be appropriate that it should automatically have to be published. It is better to use the existing mechanisms to deal with this matter rather than require all of these reports to be published, regardless of whether they are right or wrong, the rights of third parties or other such issues which I would have to consider if the reports were automatically made public.
I still cannot see why it cannot be done. An increasing amount of information is being made subject to the freedom of information legislation. The way things are going, a freedom of information request will be necessary to find out who is the Minister for Justice, Equality and Law Reform, and journalists and anybody else who wished to find out will be charged for the information. That is what is happening with the Freedom of Information Act in many instances.
Amendments Nos. 25 to 31, inclusive, are related to amendment No. 24, while amendment No. 28 is an alternative to amendment No. 27. Is it agreed that amendments Nos. 24 to 31, inclusive, be discussed together? Agreed.
I move amendment No. 24:
In page 12, subsection (3), line 21, to delete "may" and substitute "shall".
Sections 12 and 13 deal with inquiries into the conduct of prisoners and sanctions that can be imposed on them if they are found to have breached prison rules. Amendments Nos. 24, 27, 29 and 31 are essentially of a technical nature. Amendment No. 24 allows for procedures for an inquiry to be listed somewhere other than in prison rules. Amendment No. 27 replaces subsection (1)(e), which is virtually incomprehensible as drafted. I have attempted to re-word it to convey the meaning that was originally intended. I note the Minister has decided to delete the paragraph in amendment No. 28 but this is not necessary. It is an important provision that prevents governors from financially penalising prisoners to an extent they might be unable to meet. The Minister had the right idea with the original provision in which he limits the sanction to money earned by the prisoners in prison.
Amendment No. 29 clarifies that the governor may not confiscate money under section 13(1)(g). Amendment No. 30 is a stylistic amendment. Amendment No. 31 leaves it up to the governor of a prison to decide what constitutes an exceptionally meritorious act and, therefore, prevents any potential challenge to a court seeking recognition for such an act.
I support amendment No. 25. I cannot understand why a member of a visiting committee was excluded in the provision. I am also concerned that with regard to health care, and the person can be kept in this situation for two months, the Minister has only mentioned a doctor. What if the person is in agony with an impacted wisdom tooth? Is a dentist permitted? It is cruel and inhumane treatment if somebody is not allowed to treat that complaint. What if the person has an injury? There might have been a fracas and that is the reason the person has ended up in this position.
Would it not be wiser to use the phrase "health care worker" to cover dentists, physiotherapists or podiatrists, if there are verrucas growing up to his knees? It is unwise to use the word "doctor" because it could be the case that a doctor is not the person required to deal with the medical condition the prisoner might have. Frequently the people who are subject to prison discipline have got into that mess because they were involved in a fight and the health care worker they require might not necessarily be a doctor. The provision states that the person can be kept excluded for a period of up to 60 days, which is a long time to neglect giving them specific medical treatment.
Senator Henry spoke about amendment No. 25. The reason we seek to include "a visiting committee" is that visiting committees have a statutory right to visit prisoners under section 3(2) of the 1925 Act. In amendment No. 26 we seek to insert the United Nations Committee against Torture. As the section provides for a right to visit the prisoner to the Council of Europe Committee against Torture, it is appropriate that it cover the UN committee as well.
With regard to amendment No. 24, I prefer to retain the word "may" because it allows flexibility with regard to matters which might or might not be appropriate procedures and how I establish them and lay them down. While the section does not necessarily require rules, it makes possible the introduction of rules to address these issues.
I am favourably disposed towards amendment No. 25 and, on the assumption that it is properly phrased, I would be happy to accept it on Report Stage.
With regard to amendment No. 26, the United Nations Committee against Torture does not visit prisons in the sense that the Council of Europe committee does. I do not, therefore propose to accept the amendment.
I appreciate that Senator Cummins considers the present draft to be deficient but his amendment No. 27 is also somewhat complex. I will examine both versions to determine whether the wording can be improved on Report Stage.
Amendment No. 28 removes language that is repetitive and superfluous. When the Bill was being drafted, the intention was that any forfeiture of money by a prisoner imposed as a sanction under section 13 would be limited to the forfeiture of the money the prisoner would have earned or received while in prison. The wording of paragraph (e) was intended to be particularly clear on this point, in that the prisoner’s own personal funds could not be forfeited. On consideration, however, the present wording is somewhat long winded. Removal of the phrase “but not exceeding an amount of such money that would, but for such forfeiture, be given to him or her while in prison” would not change the meaning, as the phrase “from public funds” already ensures any moneys to be forfeited cannot be removed from the prisoner’s personal funds or funds that he or she may have earned before entering prison. Therefore, as money earned from outside sources would not be forfeited under this section, I will reconsider the matter.
Amendment No. 29 proposes that gratuities payable to prisoners under prison rules should be denied, but not confiscated, for a period of 60 days. In my view, the addition of the words "but not confiscated" is not strictly necessary because it is clear the gratuity is being denied rather than confiscated. I assume Senator Cummins is referring to the crude entitlement in the past to a gratuity but it is one matter if it has been paid and another if it has not. I will reconsider the provision in light of the Senator's proposal.
Amendment No. 30 proposes the addition of a comma. I am advised by the Parliamentary Counsel that such an amendment is not necessary and would be grammatically incorrect.
With regard to amendment No. 31, section 13(5)(b) provides that the governor can restore all or any part of a remission of a portion of a sentence forfeited by a prisoner under section 13 if, among other matters, the prisoner has performed an exceptionally meritorious act. I can accept the proposed amendment, which provides for the addition of a reference to a prisoner who, in the opinion of the governor, has performed a meritorious act.
I ask the Minister to consider my suggestions on health care workers.
I am sympathetic to the Senator's argument and will consider an extension to other cognate disciplines.
I move amendment No. 29:
In page 13, subsection (1)(g), line 25, before “during” to insert “but not confiscation,”.
In view of the Minister's commitment to reconsider the wording of the subsection, I withdraw my amendment.
I move amendment No. 31:
In page 14, subsection (5)(b), line 5, to delete “has” and substitute “has, in the opinion of the governor,”.
Amendments 32 to 44, inclusive, are related and may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 32:
In page 14, subsection (1), line 29, after "imposition" to insert the following:
"or within 7 days of a decision of an Appeal Tribunal affirming the sanction so imposed".
The purpose of amendment No. 32 is to correct a flaw in the present provision for a petition. I want to ensure such a provision can operate following the exhaustion of the appeals process.
With regard to amendment No. 34, section 15 as it stands is flawed, in that there is no right to be informed of the right of appeal nor is there a time limit for an appeal. My amendment attempts to address that issue.
In respect of amendment No. 41, the Bill is flawed in not stating whether these sanctions can be imposed pending appeals. The amendment offers a flexible mechanism similar to the discretion to suspend a sanction which obtains in court appeals.
Amendment No. 35 seeks to delete "notify the governor of his or her intention to" because this phrase infers no duty on the prisoner and introduces confusion in the context of the steps which must be taken for an appeal to be lodged. Amendment No. 36 allows the prisoner to make an appeal directly, which I understand to be the Minister's intention. Amendment No. 37 then allows the prisoner to inform the governor of his or her decision to lodge an appeal. It is only right that a prisoner should be able to lodge an appeal directly to the appeals tribunal and there does not appear to be any logical reason he or she should have to appeal through the governor. These amendments also prevent any situation arising whereby a governor might try to obstruct an appeal. Acceptance of these amendments would require deletion of subsection (2), which is provided for in amendment No. 38.
Amendments Nos. 39 and 40 are mutually dependent. Legal aid should be granted to prisoners in the usual manner and there is no need for the Minister to interfere.
Amendments Nos. 32 to 44, inclusive, deal with appeals relating to disciplinary sanctions. Amendment No. 32 proposes that a prison may, within seven days of a decision of an appeals tribunal upholding a sanction, appeal the decision to the Minister. I do not propose to accept this amendment because the appeals tribunal created under this legislation is independent in the exercise of its functions and it is intended the decision of a tribunal will be final. It would not be appropriate to appeal an appeal because that would have the potential to become a never ending cycle. Furthermore, it is not appropriate for the Minister to become involved once a tribunal has issued its decision. The amendment is based on an apprehension that Ireland is not fully compliant with the obligations set out in the European Court of Human Rights but I do not see how an appeal to the Minister would further the independence of a tribunal if it is overruled.
Amendments Nos. 33 and 42 to sections 15 and 16, respectively, lend precision to the provisions. The amendment to section 15 inserts "his or her", which clarifies the provision. The amendment to section 16 makes the wording more precise by replacing "one or more than one Appeal Tribunal" with "an Appeal Tribunal or more than one such Tribunal".
Amendment No. 34 in the name of Senator Tuffy provides for the governor to inform a prisoner of his or her right to appeal. On initial examination, I have sympathy for this amendment, which I believe is necessary. The prisoner should be informed of the option to appeal, and that has not been expressly stated in the Bill's text. I wish to consider the Senator's proposed amendment and consult the Parliamentary Counsel. I will return to the House on Report Stage. I am grateful to Senator Tuffy for bringing it to my attention.
Amendments Nos. 35 to 38, inclusive, in the name of Senator Cummins effectively provide for a prisoner to appeal directly to a tribunal and for him or her to notify the governor of an intention to appeal. The appeal would not be routed via the governor. I am not disposed to accept those amendments, as I am strongly of the view that notifications must be transmitted through the governor as a standard practice regarding all requests from prisoners. Under section 15(2) the governor is legally obliged in every case to refer such a matter to an appeals tribunal.
Amendments Nos. 39 and 40, also in the name of Senator Cummins, delete references to free legal aid and remove the provisions stating that regulations may be made granting free legal aid to prisoners appealing to the tribunal. I do not propose to accept the amendments. The Office of the Attorney General has advised me that access to free legal aid may be necessary in this context to comply with the European Convention on Human Rights as interpreted by the courts in a recent case. Since the appeal involves a possible loss of remission and as such could be regarded as equivalent to imposing an additional sentence, it would require the safeguards associated with some aspects of a criminal trial, including legal representation. I have sympathy with Senator Cummins's view that we do not want lawyers dominating the process, but there may be cases where, owing to the significance of the potential loss of remission, legal aid is required. I should not mislead the House by saying that there would be no problem with blanket removal.
Amendment No. 41 in the name of Senator Tuffy provides that the application of a sanction shall not be delayed by reason of appeal. I cannot accept the amendment, as it is unworkable. If, for example, a sanction of confinement to a cell for three days were imposed and immediately effected, and the prisoner appealed, by the time any appeal had taken place, the three days of confinement could well be over. The sanction would already have been imposed, and the appeal would be more or less nugatory. The amendment is flawed and I do not propose to accept it.
Amendment No. 43 in the name of Senator Cummins would have the effect of allowing persons other than barristers or solicitors of seven years' standing to act as members of appeals tribunals. I am not keen on that, since it is important that a member of an appeals tribunal have extensive legal experience. Moreover, as an appeals tribunal is a quasi-judicial authority, it is not appropriate that a person with no legal background should take on a judicial role.
Amendment No. 44 in the name of Senator Cummins has the effect of providing that an appeals tribunal must publish the reasoning behind its decisions. I will consider that proposal further and revert to the House on Report Stage.
Amendment No. 43 refers to appointing qualified people to an appeals tribunal. I feel strongly that the constituency the Minister describes in section 16(3) is unnecessarily restrictive. As I said on Second Stage, I understand that it has probably been modelled on other tribunals. However, it overlooks the pool of experience provided by former prison governors, for example, or those who have worked as chaplains, doctors, teachers or in a range of other positions in prison. Surely someone who has worked as a chaplain in a prison for the last 20 years would be sufficiently qualified to deal with the kinds of questions addressed by an appeals tribunal. I firmly believe that it should not be confined to members of the legal profession because of the experience over which people such as chaplains, doctors, psychiatrists and governors dispose. They would be fitting persons to appoint to such an appeals body, which should not be confined to lawyers.
Senator Cummins makes a valid point, since a practising barrister or solicitor may have very little experience of conditions in prison or what happens there. Someone with experience of life in prison might be far better suited to deal with an appeal. One can scrutinise the legal process carefully, but the humanity of prisons is of great importance in such cases, and that should not be overlooked.
It is important that such bodies be seen to be independent and quasi-judicial and that persons sitting on them be such that one might expect of them an understanding of the law regarding the European Convention on Human Rights, fair procedures, natural justice, constitutional principles and so on. Such concepts are valuable in this context. I would not like to say too much about former chaplains, but if they are still men or women of the cloth, the notion that they should act as tribunals is not attractive. I make that point for the Senators to consider. It would be embarrassing for a priest, nun or other member of the clergy to be asked to sit in judgment regarding forfeitures and so on. I would not be keen on that.
If I had proposed that former governors should hear appeals from serving counterparts I would have been shot down fairly rapidly. Perhaps when the Opposition comes up with an idea it has a different connotation. However, if I had suggested that the outcome of an independent appeal should rely on a former governor's decision on a matter concerning a serving counterpart, the men in white coats would have been sent after me.
Perhaps certain of the men in white coats would be better qualified than some of the tribunal members.
We do not want to deal with the psychiatric profession through such stereotypes. However, if we are to establish an independent, quasi-judicial system to replace what currently obtains, which is that there is virtually no possibility of appeal, it would be better to do so using someone expected to have due regard to legality and who knows his or her way around such things as the European Convention on Human Rights, the Constitution and basic procedure. Lawyers are more likely to have that instinct than chaplains, who might be fairer in one sense, being kinder and more generous people. However, they would be embarrassed at being asked to do such a job, and it would not be appropriate.
I still believe that confining membership to the legal profession is very restrictive. The Minister mentioned the Human Rights Commission. If one had people from it or perhaps a former chairman, they would be eminently qualified to navigate whatever legal obstacles were in their way. The provision confining membership to the legal profession is unnecessary for such an appeals tribunal.
It is a matter of judgment. For instance, there are lawyers on the Refugee Appeals Tribunal, since deciding who is entitled to protection under the Geneva Convention is a complex process. If one is listening to a proposal that someone's remission, which can be up to a quarter of his or her sentence, be forfeit because of an incident, one should have a very clear grasp of the law, since I have no doubt that such matters will be subject to legal challenge through the courts. On an issue of such importance, it is good to have someone who will not make elementary legal blunders and land us with a judicial review.
Is the legal profession not also capable of that?
Its members are entirely capable of making blunders, but it is supposed to be notable when they do so. One cannot ask laypeople to become expert in the law solely to decide such issues. I do not have unshakeable faith that no lawyer will ever make a mistake. There is no doubt that lawyers will make mistakes and, in such cases, there will be a judicial review. A lawyer, however, is less likely than a layperson to make a mistake bearing in mind that the eligibility of the lawyers in question to membership of the tribunal will be based on their not merely being trained but also having carried out their professional duties for an extended period.
Amendments Nos. 45 and 46 are related and may be discussed together. Is that agreed? Agreed.
Amendment No. 45 inserts the word "any" before "aspects of the environment likely to be significantly affected". This precision is necessary because it is possible that a proposed development might have no significant adverse effects on the environment.
Amendment No. 46 adds "cultural heritage" to the list of those aspects of the environment likely to be significantly affected by a proposed development which must be considered in an environmental impact assessment, EIA. The subsection already includes material assets, which are defined as including architectural and archaeological heritage. However, cultural heritage is specifically referred to in Article 3 of the European Council directive of 27 June 1985 dealing with the assessment of the impact of certain public and private projects on the environment, from which the provisions relating to the EIA in this Bill are drawn. The words "cultural heritage" were inadvertently overlooked in the drafting process and their inclusion will ensure the provisions comply more closely with the provisions of the EU directive.
It is important that the impact on the built environment should also be considered as part of the environmental impact assessment. The concerns of residents living near the proposed development, for example, should be taken into account. Does the Minister envisage that such issues will be included in this process?
In other legislation providing for decisions of this type to be taken by a Minister, provision is often made for an oral hearing. Does the Minister agree it would be appropriate to include such a provision in this Bill? This question is relevant not only to section 19, as amended, but to Part 4 in its entirety.
The built environment is cognisable under the provisions of the section, as amended. In regard to the Senator's question on oral hearings, I wish to clarify that the procedure outlined in this Bill does not involve the Minister making the final decision. Part 4 applies to a particular development where the Minister directs that it should do so. Such a direction is deemed to be a statutory instrument. Before proceeding with the development, the Prison Service must appoint a person to prepare an EIA in respect of the project, including all the materials set out in section 19.
On receipt of these documents, the Minister gives notice of the development to the planning authority, members of the public, the Minister for the Environment, Heritage and Local Government and, in certain cases, the Minister for Communications, Marine and Natural Resources. If the development is likely to have significant effects on the environment of another party to the Espoo Convention, which deals with environmental impact assessment in a transboundary context and was signed at Espoo in Finland in 1991, there must be compliance with the provisions of that convention.
Section 21 provides that the notice given by the Minister must include the date on which it was issued; give a brief description of the general nature of the development, including its size and purpose and the number of prisoners it is to accommodate; identify the location; indicate how many copies of the documents outlined in section 19 may be obtained from the Minister pursuant to section 22; invite interested parties to make submissions to a rapporteur appointed under section 23; and state that the submissions so made must be accompanied by the name and address of the person making them.
Under section 22, the Minister must make a copy of the documents available to any interested party either in written form or electronically. The Minister must then appoint a rapporteur to receive written submissions, and the latter must consider only those submissions received within the requisite period. The rapporteur then prepares a report on the basis of those submissions. He or she effectively analyses the responses to the EIA documentation that was made public.
Section 24 sets out the procedure that should be followed when the Minister, having regard to the report of the rapporteur, decides to make a so-called material alteration to the development. This involves the preparation of a supplementary EIA. According to section 25, the Minister, having regard to the EIA, the rapporteur's report and the supplementary report, may make further alterations to the development and may decide whether to proceed with the project. If the Minister decides to do so, he or she must come before both Houses of the Oireachtas with a resolution in draft form setting out his or her proposal. Before the Minister moves the draft resolution, all the documentation must be made available to the Houses. If the draft resolution is approved by both Houses, and confirmed by an Act of the Oireachtas, the Minister may proceed with the matter. This is analogous to the old restrictive practices commission procedure which was in place before the Competition Authority. The groceries order is an example of such an order. There was an examiner of restrictive practices who carried out an inquiry, made a report to the Minister with a recommendation for or against an order and the Minister then laid the order before the Houses. An Act, however, had to be passed by the Houses to confirm the Minister's order before it had legislative force.
The purpose of this section is to give legislative force to a proposal to build prisons. It cannot be simply a matter for An Bord Pleanála to decide whether there should be a prison on a certain site. The State must have the right to build prisons. In this day and age, however, it is unsatisfactory that a Minister could decide to build a prison here or there without any regard to anyone's interests and no democratic input. The Minister must submit all materials, including a public response phase, to the Houses which will then decide to confirm the Minister's intention in an elaborate process. At the end, it will have the force of law.
From an EU law perspective, what would otherwise be an obligation to submit it to an independent outside body is avoided as it becomes a legislative Act. EU law requires either independent binding decisions or a legislative Act in cases of this kind. This is the basic background to this proposal.
It may be asked why An Bord Pleanála should not decide where a prison should be. On issues such as this, in the last analysis, it is a matter for the security of the State for which the Executive, tempered by the legislative process, makes the decisions. We cannot have a situation in which An Bord Pleanála decides Leitrim rather than Portlaoise is a better place for a prison. It is not a matter of a free choice for a group separate from the process of government to make fundamental choices of this kind.
I was interested in the radical distinction in the way in which the proposals for Thornton Hall and the Kilworth suggestion were handled. Castlerea is an example of a community which welcomed the prison proposal with open arms. Other communities will say, "not in my backyard". For those who take the NIMBY position, I cannot deny them the right to have their views taken into account. However, in the last analysis, society must have the right to decide the location of, say, a motorway. This procedure is designed to ensure it is fully compliant with EU law.
I took on board the Minister's comments on this on Second Stage and, therefore, have not tabled many amendments on the section. I have suggested that when future prisons are built, they would include courthouses on site. This would cut down on the various costs associated with transporting prisoners between court and prison.
Tonight, I will telephone my relations who live in Kilworth to find out their views on this for Report Stage. It is important to remember that Castlerea prison replaced a psychiatric institution. At the time, an individual informed me that his father and grandfather had supplied victuals to the asylum and were looking forward to continuing to supply victuals to the prison. There was a commercial side to the locals' views on the prison being located there.
Does an environmental impact assessment mean the same as an environmental impact study, as under the Environmental Protection Agency Act?
It is very similar but I will not certify it off the top of my head. It is the same territory.
I was concerned it was the same territory. I would like the term "environmental impact study" to be used in the provision as it includes established criteria. While it is the same territory, it is better to have the territory we know from the EPA legislation. I will table an amendment on this on Report Stage.
The Minister has set out the reasons the State must be in a position to build prisons without having to enter the lottery that is the planning process. This provision is a major step in introducing checks and balances not in place heretofore. I am dubious on the difference between an environmental impact assessment or statement. From my experience, a statement's contents often depend on who is paying the assessor. It can be done for or against the development. I have serious questions about the merits of assessments. While they might identify areas that need to be examined and be a basis for debate, I am not confident in their qualitative merits.
While I appreciate the Minister cannot go into the planning process with local authorities and An Bord Pleanála, the Bill requires the Minister to give notice of the development to the planning authority. I would prefer if the role of the local authority was strengthened by providing for its opinions on such a development to carry significant weight. It would not be a veto but would allow a local authority to have influence on aspects and attached conditions of a development. Local authorities have an important function to play in the overall development of an area.
I hope the inhabitants of Thornton Hall do not read Senator Jim Walsh's comments. They would not be enthusiastic for no environmental impact statement to be carried out. It is important it is included. I understand his comments on how they can vary, but I am sure we will find some honourable people will produce a sound impact assessment.
There is a whole industry in this area.
I take the point that some people are cynical about environmental impact assessments and regard them as, if I may use the word, "influenced" by the pocket from which they are financed. In this case, however, there is a rapporteur as well, which is of some significance.
Senator Jim Walsh mentioned the possibility of a local authority's views carrying extra weight. I think that depends on the view that is expressed. If a local authority rejects a certain point its view may or may not carry more weight than that of a local conservation group which may have put more work and thought into the objection. While I appreciate Senator Walsh's point, I do not wish to create a hierarchy of objectors, to the effect that one is on an inside track but other less formally constituted groups are not accorded the same degree of respect. We need to take account of the reality that the seriously worked out objections of a local authority's planning officers are likely to carry more weight, because of the officers' experience and the nature of their objections, than the objections of a crackpot who jots observations on the back of a beer mat. If I formalise this proposition and say, or imply in the legislation, that one set of objections should carry more weight I might be accused of saying that voluntary groups must fight an uphill battle by contrast with statutory bodies. I hope Senator Walsh can understand that I do not want to create two-tier commentators or objectors.
Amendments Nos. 47, 48, 49, 53 and 54 are related and may be taken together by agreement.
I move amendment No. 47:
In page 18, subsection (1), between lines 7 and 8, to insert the following:
"(b) the Oireachtas,”.
It appears from section 20 that the Minister is giving notice of the development to everybody but the Oireachtas. This is a simple amendment which will require him to include the Houses of the Oireachtas in notices he will send out. It is not an overly-onerous task and the process will be better served by including the Oireachtas in this notification.
I will consider the possibility of laying the notice before the Houses of the Oireachtas between now and Report Stage. Generally speaking, there is a public advertisement process and it is unlikely that I would notify the public and that somehow the Dáil and Seanad would have what I may term a "senior moment" and not notice what I am doing.
Amendment No. 48 aims to deal with a problem in the section which requires the Minister to move a draft resolution of both Houses containing a drawing. We feel that it may be cumbersome to insert a drawing in the resolution, as the Bill now demands, so we suggest the alternative of identifying a drawing which may not necessarily be contained in the resolution but which could be laid before the Houses.
Amendments Nos. 53 and 54 propose to correct an error in citation.
I accept amendments Nos. 53 and 54.I am not satisfied that I should accept amendment No. 48.
I noted the Minister's response to my last point and can see that he does not want to make a distinction between objectors, but in respect of those the Bill puts on notice, while the Minister for the Environment, Heritage and Local Government might have a general remit in respect of overall development of the country he or she would not have the specific remit applying to a local authority. The same is true of the Minister for Communications, Marine and Natural Resources. Certain members of the public, or groups, may go to a lot of trouble, professionally and so on.
I was not canvassing the point that a local authority could object absolutely and follow the populist line that it does not want the prison in its area. That will not carry weight. The overall decision rests with the Minister but this section does not recognise that the local authorities are charged with overall responsibility for the proper planning and development of their areas. There is no overseeing local input into the design of the prison which might help to win support for the project in the area. I hold to the opinion I expressed earlier and I am sure the Minister holds to his.
Will the Minister comment on the suggestion that court services be involved on the site?
Can the Minister ensure that the buildings are nice? Many buildings go up which are a blight on the landscape yet when one raises that with county managers they say that is because the law is not strong enough to help them require good design. If this was in the Minister's control he could try to do that. Perhaps in future these buildings will not all be used as prisons and could be given some other purpose. It would be worthwhile to avoid putting up square blocks or ugly buildings and to build instead attractively designed buildings.
Would this cover a designated centre, such as the Central Mental Hospital being moved into the complex?
This provision does not cover a designated centre. That would require different legislation.
There are court houses beside Castlerea and Clover Hill and Wheatfield. I intend to put a court beside Thornton Hall because it makes sense for the reason that Senator Cummins mentions. Likewise I intend to examine the possibility of putting a Garda station near the major prison developments in north Dublin and Munster because if somebody tries to bring drugs into a prison it is useful to have gardaí within shouting distance. The same applies if someone is causing trouble outside the prison. I have dealt with the points raised by Senator Tuffy.
What about the buildings?
Regarding the attractiveness of buildings, there must be a trade-off between solidity and durability and architectural appeal. Some aspects of Kilmainham Gaol are attractive such as the screen walls on the front. Likewise, Mountjoy Prison has some attractive architectural features, some of which may well be preserved. It is true that modern prison buildings are generally less interesting than old ones. However, I was struck by the attractiveness of the Midlands Prison. It is by no means the worst. One has to make a trade-off between practicality and aesthetics in all of these cases.
In Thornton Hall it is the intention of the designers that there would be a screen and earthworks to make the complex there generally invisible to the outside world so that it will not be a feature of the landscape. Some countries build their prisons upwards to three or four storeys and the experience is that the higher one goes, the greater the trouble. Enormous halls are created inside prisons that are noisy and difficult in terms of keeping control. It would be my intention that whatever is done in Thornton Hall would be extensive rather than vertical. The new sites for large prison developments should have place for football pitches, running tracks and exercise areas, and not just have inmates crammed into small spaces.
In Kilmainham Gaol there is a carving of chained serpents over the doors to frighten people going in. There is a Latin motto to the effect that one should be merciful to those who have been put down and equally to knock the corners off the proud. We would not propose to put such a motto above a prison nowadays. We are better off putting a mission statement inside a prison rather than putting up slogans with moralising thoughts for prisoners to read as they go in.
The Minister referred in his discourse to drugs in prisons. Is he aware that reference was made in this House to the fact that two prisoners from Wheatfield Prison spoke by mobile telephone on a radio programme today? They stated that the prison is awash with drugs. I invite the Minister to comment on this.
In support of what the Minister stated, the Dóchas Centre — the women's prison — is very good. It looks well from the outside as one goes up the North Circular Road and it also looks well inside, proving that it is possible to achieve a balance in building prisons to make them look as attractive as possible, as Senator Tuffy stated.
I also agree with the Minister about not having multi-storey prisons. They are not a good idea. The Minister should visit Maiano Prison in Spoleto, Italy. It is the high security prison which designed the sets for Opera Ireland's recent staging of "La Bohème". Sets and costumes were also produced in the men's prison in Mountjoy and in the Dóchas Centre. That Italian prison was built about 20 years ago. If the Minister has time it would be well worth his while visiting it. It is difficult to deal with long-stay prisoners who are incarcerated for 20 years or 25 years but based on my visits there, it appears to be working well.
The Seanad is such a nice place compared with the Dáil. Here, it is suggested to me to take a trip to Italy, etc., while in the other House one is asked whether all one's trips are necessary.
The Minister can go to see "La Bohème" as well.
I agree with what Senator Tuffy said about the women's prison — the Dóchas Centre. The pity about it is that it was designed by optimists who did not make it big enough. The prison is already overcrowded.
I disagree with the Minister on that point. It is big enough.
People are sleeping in portions of the building that were not originally designed as sleeping accommodation.
Perhaps some of them do not need to be there.
That is a sad fact. To return to Senator Cummins's point, unfortunately, that prison is vulnerable to drugs being smuggled into it. It is no exception to the rest of the Mountjoy complex in this respect. Drugs can be catapulted over the wall. There have been incidents of drugs being intruded into the prison in that way.
Senator Cummins asked me whether there are drugs in prisons. There are, which is why we must revisit the issue. That is what the drugs strategy in prisons is all about. I make no apology to anyone and those who suggest that because there are drugs outside, there are bound to be drugs inside, are no more morally enlightened than I. That is a negative view of the prison system.
It is the duty of the State to keep prisons drug free and we must take the necessary steps to bring that about. However, other things must give way for prisons to be drug free, such as the right to have physical contact with visitors if that significantly enhances the risk of drugs getting into prisons except in highly controlled circumstances. People will say there are perfectly decent people in prison who should have contact but they are the people who are frequently subjected to bullying to abuse the prison visit to bring in drugs. It is not an easy situation. Much as I would love to live in a world where a child could be passed over the table to his or her father, for instance, in a prison, the fact is that such contact has regularly been abused in the past for the purpose of introducing drugs. I do not wish to comment on more recent events in regard to the passage of drugs. Vigilance in every respect is of great importance. Prison officers face an uphill battle in keeping prisons drug free.
Mobile telephones are prohibited in prison. It is the duty of the Prison Service to ensure that the prohibition is effective. There is more than one way of skinning a cat in that, on the one hand, there can be searches but jamming can also be employed. The Prison Service intends to introduce generally a system of jamming mobile telephones within the prison system.
Amendments Nos. 51 and 52 are related to amendment No. 50 and they may be discussed together by agreement. Is that agreed? Agreed.
These three amendments relate to section 27. They deal with the question of acts done pursuant to Part 4 of the Bill. The amendments to this section are intended to ensure clarity. Amendment No. 50 removes the phrase "order made" from those acts of which the validity may be questioned. The reason for this is to simplify the provision as its inclusion was repetitive. For an order to be given, a decision must have been made in the first place so by including that, the making of a "decision made or direction given" order would automatically be covered. The words are thus superfluous.
Amendment No. 52 deletes the word "other" from subsection (4). This subsection provides that the notice of the application may be served on such persons as the court directs. The use of the word "other" was superfluous.
In amendment No. 51, the insertion of the phrase "that Order" instead of "the said Order 84" improves the flow of language and makes the provision simpler to understand.
I move amendment No. 53:
In page 22, subsection (1)(a), line 35, to delete “2000 and 2006” and substitute “2000 to 2006”.
I move amendment No. 54:
In page 22, subsection (1)(b)(iii), line 41, to delete “2000 and 2006” and substitute “2000 to 2006”.
Amendments Nos. 56 to 63, inclusive, are related to amendment No. 55 and all may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 55:
In page 23, between lines 32 and 33 to insert the following subsection:
"(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.".
The purpose of this amendment is to provide continuity with the existing holder of the office, Mr. Justice Kinlen. We welcome the fact that the section puts the office of Inspector of Prisons on a statutory basis and confirms the independence of his or her functions. Obviously the present incumbent of that office has been independent. That is confirmed by the fact that he feels free to criticise the Minister, which is only right and is an indication that he is showing his independence and doing his job correctly. That is an omission in the section as it stands as it does not make clear there is that element of continuity.
I support the amendment. Were the Minister to accept it, it would show him in a very good light. To recognise a person's independence, even though it may have been troublesome at certain times, is well worthwhile. I am glad Senator Tuffy tabled this amendment.
I fully appreciate the intention of this amendment which is to recognise the independence and hard work the current inspector has carried out. It is not usual, in respect of a statutory officer, to provide in law that a non-statutory officer shall be the first statutory officer. This is a matter to be decided when the term of the current incumbent comes to an end. I am not in a position to say to the House that automatically that person will be appointed. I may not be Minister at that time and whoever succeeds me might not be of the same view as Members on this matter. It is clear that in no sense is he disqualified from appointment to the position.
On a point of clarification, when the legislation is commenced, does that mean the present holder of the office is then the statutory inspector?
No, it does not mean that. To be appointed, one has to be appointed under the terms of the Act. The present incumbent, Mr. Justice Dermot Kinlen, is a non-statutory inspector whose term of office is due to expire in April 2007. It would not be proper for me to provide in legislation that somebody whose office is still ongoing will be automatically appointed by whoever is Minister for Justice, Equality and Law Reform in April 2007. It is not proper for anybody to say that. What I am saying is that he will not be excluded from appointment by the terms of this legislation. It would be strange if one were to provide that a person who was occupying a non-statutory office was automatically, and without regard to anybody's views, made the first inspector thereafter, even though the term of office of that person had expired.
Sorry, amendment No. 58 was not discussed.
It was included in the grouping.
If it is of interest to the Senator I propose to examine it before Report Stage.
I thank the Minister. Amendment No. 59——
That amendment was discussed with amendment No. 55.
I move amendment No. 59:
In page 24, subsection (3), line 19, to delete "shall" and substitute "shall, within 3 months of receiving it,".
I did not get the opportunity to speak. I did indicate I wished to speak. I have tabled a number of amendments in this grouping.
Amendment No. 59 requires that the Minister lay the report before the Oireachtas within a specified time period of three months. As discussed earlier, this is an important item since the Oireachtas will have time to debate the importance of issues contained therein. Unfortunately, the Minister has acted in bad faith in regard to reports of the inspector of prisons and places of detention in the past. I mentioned that matter on Second Stage. For example, during the past two years the Minister published Mr. Justice Kinlen's reports during the last week of the parliamentary term so that there was not time to schedule a debate on many important and not insignificant issues surrounding the management of our prisons. I would hate to see this type of disrespect for the Houses of the Oireachtas to become common place. Therefore I table this amendment to ensure the Minister's successors of whatever party would not act in the same way.
In respect of amendment No. 60, the doctoring of the inspector's report and the removal or omission of information that the inspector saw fit to include is too important a matter to be decided between the Minister and the Government's Secretary General. Rather, the decision should be taken by the Government and the collective responsibility should be applied to it.
Section 31(6) effectively prevents the inspector from examining a complaint from an individual prisoner. While I am not suggesting that responding to every prisoner's individual complaint should be one of the inspector's functions, I have tabled amendment No. 61 in order that the inspector's hands are not tied in any way. By way of this amendment he or she could examine issues raised by a prisoner and hence fulfil one of his or her important functions.
Amendment No. 62 creates a specific offence of failing to co-operate with the inspector. This is an important support framework for the inspector. Amendment No. 63 returns to the issue I have raised a number of times this afternoon. It is important there are statutory timescales within which the Minister must lay documents before the Houses of the Oireachtas. Without them it is too easy and convenient for Ministers to ignore the Oireachtas and either delay publications indefinitely or occasionally delay debates or prevent them from taking place on important issues such as those raised in the annual report of the Inspector of Prisons and Places of Detention. It would have been remiss if we had not reached these amendments and I thank the Leas-Chathaoirleach.
I wish to speak to amendment No. 59. Sometimes we believe we have done something once a report has been produced. However, unless we discuss it and ascertain how we should act on it, it is useless. We get report after report on a variety of topics, 98% of which are never discussed in either House of the Oireachtas. When I was first elected to this House and discovered that the reports of the Inspector of Mental Hospitals had never been discussed in either House, I could scarcely believe it. Fortunately I managed to get them discussed every year fairly briskly. Twice during this session I have asked that the report of the Inspector of Prisons and Places of Detention and the visiting committees' reports be discussed. I am sure the Leader has made every effort to allow such a debate.
It is pointless getting reports that nobody sees. They are of no value if they remain a secret. We want to learn from them. It allows that anything of a secret nature can be blotted out in the traditional manner. It is important that this legislation specifies that within a certain timeframe the report must be debated.
These Houses are free to discuss what they wish. As long as reports are made public it is up to the Members of this and the other House and the separate committees of the Houses to decide what they will discuss. In this new age of transparency, a vast amount of reports are submitted to the Houses of the Oireachtas, including reports on the conditions of nursing homes, and reports on the operation of special schools and various other institutions. When dealing with legislation it is tempting to suggest that there should be a positive obligation to discuss certain reports every year. However, if Senators suggested that the huge number of reports that pass across the Government table every week at Cabinet should all be discussed by the Houses of the Oireachtas there would be practically no time to do anything else.
In the other House this week and shortly in this House we will discuss four reports relating to the Garda Síochána, the Barr report, the Morris tribunal reports, the George Birmingham report and the Nally group report. If everything needed to be discussed separately, these Houses would do nothing. It is a matter for the Houses to decide what they want to discuss and to make time available in Government time, in Private Members' time or by agreement of the Whips.
The prison visiting committee reports in respect of every prison in the State could theoretically be the subject of a mandatory discussion clause if Senators wanted. However, we need to be reasonable. I am only discussing matters in the justice area. There are so many reports to be discussed every year, including the reports of the Garda Inspectorate and the Garda Ombudsman Commission, that we must come to the conclusion that making them public is sufficient and their terms speak for themselves. We cannot have both Houses discussing every report in detail.
Senator Cummins suggested that I have acted in bad faith. I have not. I will outline the facts regarding the particular report whose publication was delayed. The inspector submitted his second annual report to me in May 2004 and, having studied the report closely, I had concerns that some of the contents were defamatory and therefore I sought advice from the Attorney General on the matter. I did this by no means on a hair-trigger basis, I did so because I had grave concerns that they were defamatory. The Attorney General subsequently provided advice that indicated that a number of references in the report were considered to be prima facie defamatory. In view of that advice and the appreciable risk of a civil action associated with my publishing the report in its initial form, I wrote to the inspector on 30 August 2004 and asked him to reconsider the report and if possible to resubmit it to me in a form which would be suitable for publication by the Department.
In September 2004 the inspector sought a copy of the legal advice provided by the Attorney General. Having consulted the Attorney General, on 21 October 2004, I advised the inspector that the Attorney General decided that the legal advice provided was privileged and confidential and that he did not intend to agree to it being furnished to the inspector. The inspector then wrote to me again and suggested that an official be appointed "to act as Dr. Bowdler" and to indicate the portions of the report which he thought should or should not be deleted. He further advised that he would carefully consider any such suggested deletions and that if he were persuaded that they were justified he would delete them.
On 17 November 2004, I replied to the inspector that if I were to appoint an official to suggest deletions to his report, it would create an unacceptable precedent and would create the impression that the Minister was trying to undermine his independence and suppress valid criticism. I also informed the inspector that there were numerous statements in his report which were possibly prima facie defamatory of named individuals and which were arguably totally unnecessary to the discharge of his functions. Following a further letter from the inspector in December 2004, I advised him on 22 December 2004 that in a development of his original proposal, I proposed now to request the Attorney General to appoint an independent senior counsel to examine the report and advise what deletions were required to allow the report to be published without exposing the State to serious risk of civil action or infringing the constitutional rights of identifiable individuals.
The advice of the independent senior counsel was received in March 2005 and the deletions as recommended by him and the Attorney General were made to the report. The amended report was then translated into Irish in order to comply with the provisions of the Official Languages Act 2003 and the amended report was laid before both Houses of the Oireachtas and published on the Department's website on 20 April 2005. The inspector was advised by me in writing of the necessary deletions to the report one week before I published it.
I did not act in bad faith. I acted in good faith. I invited the inspector to reconsider his report to ascertain, he being an eminent jurist, whether he could tidy it up and present it in a form that in my view was non-defamatory. He preferred that I should appoint an official to do that. I thought that would effectively end up with me writing his report for him. Eventually the notion of in independent outside counsel to decide was followed. I did not delay the report in bad faith.
Just because a person has a statutory office, it does not mean that other people do not have rights. My concern was that where somebody, especially a non-statutory person, is acting regarding official functions, anything that person has to say about somebody else, which is damaging to that person, should be strictly relevant and necessary to the discharge of his or her function. I have no problem about somebody making a defamatory statement if it is true or genuinely believed to be true, provided it is relevant to the function that is being discharged. However, I have a problem with canvassing an irrelevant defamation that is not material.
On this matter, the inspector and I chose to disagree, which is how the world works. I did my bit and he did his. As I said to this House on the last occasion, we remain on very friendly terms, despite all these public altercations that from time to time have arisen between us.
On the proposal that the reports be published within a specified timeframe, I do not know how I would deal more efficiently with the particular problem that arose on that occasion. However, I will consider inserting a phrase such as "a duty to publish the report as soon as reasonably practicable" after its receipt. I must also be mindful of people's rights. If a person is seriously damaged by a report, I am obliged to ask myself — looking in the mirror, so to speak — whether it is fair to expose that person to damaging reports and whether it would be improper for a particular report to be published in its original form.
I assure Members that if they had been in my shoes, they would have acted in the way I did. Mr. Justice Kinlen can disagree and that is his privilege. People sometimes disagree on matters. The only way to resolve matters in this instance was to engage an independent third party to examine the issue and that is what happened.
I move amendment No. 63:
In page 25, subsection (3), line 14, after "Oireachtas" to insert "not later than 31 May in any year".
The Minister gave a commitment to return to this matter on Report Stage.
I should have stated earlier that if I were to require that it be a function of the inspector to examine individual complaints, he would be inundated with complaints, he would do little more than act as a one-man prison visiting committee and his office would not function. The report required is systemic in nature and the inspector will have the right to examine the conditions of individuals in prisons. However, if prisoners could, as of right, trigger the investigation of each of their complaints, the inspectorate would collapse under the weight of the complaints it would receive.
I stated earlier that I am not suggesting that it should be one of the inspector's functions to investigate individual complaints by prisoners. I tabled amendment No. 63 in order that the inspector's hands would not in any way be tied and that he would be in a position to examine complaints if he so desired.
Amendments Nos. 64 and 66 are related and may be discussed together by agreement.
I move amendment No. 64:
In page 25, subsection (1)(b), line 24, after “prison” to insert the following:
"or in the designated centre (within the terms of the Criminal Law (Insanity) Act 2003)".
I am of the view that the Minister has recognised my concerns about this matter. It would be very useful if videotaping were also allowed in respect of people who might be in designated centres. Included would be all the safeguards to which they must agree, namely, that they must understand what they are doing, be in receipt of legal advice, etc. I would not like such people to be excluded from an area that is extremely useful in terms of pre-trial work and so forth. I hope the Minister will be able to consider this matter between now and Report Stage.
I want to examine this issue. The Senator will be aware that there is a misprint in the amendment, which refers to the "Criminal Law (Insanity) Act 2003". The Act was not passed until this year, so it should read "Criminal Law (Insanity) Act 2006". However, her suggestion that this matter be considered is not bad and between now and Report Stage I will consider whether power should be given to the Minister to extend the video link provisions in the Bill to persons held, pursuant to the Criminal Law (Insanity) Act, in designated centres or to those who are in such centres, having been committed there. I do not want to stigmatise these individuals as prisoners. Nor do I want to extend the definition to include patients who, under the relevant Acts, are detainees.
I would probably only put in place an enabling section. The House can well appreciate that if a person was seriously psychiatrically ill, it might do him or her no favours if he or she was obliged to participate by video link in a court case or whatever. I presume the Senator envisaged the introduction of such a section rather than a mandatory provision.
The text of section 33 makes it clear that it is not aimed at people who are seriously psychiatrically ill, so that would not arise. As stated earlier, mental illness can be episodic. It would be so much easier for the people to whom I refer, particularly before the advent of a trial, to be in a position to give evidence by video link. Video link evidence is a good development and that is why I stated that I was pleased that it was extended to children.
Amendments Nos. 65 and 67 to 70, inclusive, are related and may be discussed together by agreement.
I move amendment No. 65:
In page 25, subsection (1)(c), line 25, to delete “it” and substitute “the application”.
This is a technical amendment which merely seeks to clarify what is intended in the relevant paragraph.
Amendment No. 67 will ensure that both a prisoner and his legal team will receive notice of application. There is no reason a prisoner should be disenfranchised from the legal process. He or she should be copied on all relevant documentation. I would be grateful if the Minister could shed some light on why a notice will only issue if a judge is of the view that it is "desirable in the interests of justice". Why are notices not automatically provided to parties in this instance?
Amendment No. 68 requires that notices of applications should be sent to the DPP. This is currently discretionary under the Bill.
I am accepting amendment No. 65. It is a worthwhile suggestion that it should be an ordinary event that a notice should be served on the relevant people. Supposing, however, for some reason this not done and there was no prejudice to the prisoner. In such circumstances, a degree of flexibility would be required. If a person in the court office forgot to send the notice to a prisoner and he or she did not mind, we would not want it to be the case that something could not be done because that notice was not sent. I will re-examine the matter before Report Stage.
I move amendment No. 69:
In page 26, subsection (9), line 35, after "law" to insert "or order of any court".
The amendment goes somewhat further than the provision in the Bill, as it stands. It seeks to make it clear that the accused will be deemed to be present for the purpose of any court order. If a person obtains bail in the High Court, which remands him or her to appear before the Circuit Court, which then allows for a video link, he should be deemed to be present for all purposes at that stage.
I will examine the matter. There may be some force in the Senator's argument.
This amendment is intended to clarify the provision. As it stands, the section lists those applications in respect of which the video link facility can be used. It goes on to specify that it can be used in any other application, appeal proceedings or subsequent proceedings. The word "other", as it appears in the relevant subsection, is meaningless. To state that a video link can be used for all other proceedings as well as those listed might imply that it could be used for all proceedings at appeal stage or subsequently. As the word "other" serves no useful purpose and could lead to confusion, I am proposing to delete it.
Amendments Nos. 72, 73 and 75 are related to amendment No. 71 and all may be discussed together by agreement.
I move amendment No. 71:
In page 27, subsection (2)(c), line 37, to delete “diet” and substitute “diets”.
This is a technical amendment to correct an error in section 35(2). Since prisoners cannot have a single collective diet and each has his or her own diet, the word should be expressed in the plural.
The purpose of our amendment is to harmonise the terminology because the term used in the definition in section 11 is "prison discipline" and not "disciplines".
It is stated "diets" would be grammatically incorrect but I think it is correct. I concur with both Senators and I accept their amendments.
I move amendment No. 72:
In page 28, subsection (2)(e), line 1, after “of” to insert “prison”.
This is tabled on the advice of the Attorney General. The amendment provides a statutory basis for the entry to a prison of members of the Garda Síochána so that they can carry out their duties. While nothing in law prevents gardaí from so doing and they already enter prisons, say, to identify a suspect, the view of the Attorney General is it would be beneficial to include a specific provision in primary legislation for that purpose.
Section 19 of the Criminal Justice (Miscellaneous Provisions) Act 1997 contains a rule making provision for prisons. Section 19(8) provides that any rules under previous provisions of Acts, parts of which have been repealed, still stand. This was included when the 1947 rules were made and there were older provisions. While the Bill will provide for new prison rules to be made, the old rules will still be in use until they come into force. The amendment inserts a reference to section 19(8) of the 1997 Act to ensure we do not have a scenario where there are no rules.
Amendments Nos. 77 to 79, inclusive, are related to amendment No. 76 and all may be discussed together by agreement.
I move amendment No. 76:
In page 29, line 4, to delete "shall" and substitute "shall, subject to subsection (2),".
This amendment is technical and dependent on the acceptance of amendment No. 77, which provides vital discretion to the governor of a prison to decide whether he or she wants to demand payment for the services described in the legislation. There could be a number of reasons he or she would not want to but the Bill, as drafted, requires governors to charge for services and leaves no room for movement.
Amendment No. 78 is an important proposal, which guarantees none of the provisions in the section would be used to prevent access to medical treatment for prisoners, which Senator Henry alluded to earlier. It may well be argued by the Minister that such a subsection is unnecessary, but it is an important safeguard to the rights of the prisoners and I urge him to accept the amendment.
While the legislation is clear prisons may not profit from the provision of goods or services to inmates by stating in this section that payments or deductions shall not exceed the full cost of doing so, it is unclear whether there could not be other methods of revenue generation. Amendment No. 79 would clarify the position and ensure there is no loophole that would allow governors, prison warders or other prison officials to take advantage.
I support the amendment. I am sure the Minister does not want to deny inmates medical treatment and the amendment would make sure this could not happen.
I will examine all these amendments before Report Stage to ensure the legitimate issues raised are accommodated.
When is it proposed to take Report Stage?
At 3.30 p.m. next Tuesday.