We will resume Committee Stage of the Transfer of Sentenced Persons Bill, 1995 on section 5, amendment No. 20. We will discuss amendments Nos. 20 and 21 together. Is that agreed? Agreed.
SECTION 5.
I move amendment No. 20:
In page 8, lines 13 to 18, to delete subsection (5) and substitute the following:
"(5) On an application under subsection (1) of this section, or on the application of the sentenced person concerned within one month of being brought into the State from a place outside the State, if the sentence concerned imposed by the sentencing state concerned is by its legal nature or duration incompatible with the law of the State, the court may adapt the sentence to a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed. A sentence shall be regarded as incompatible in its legal nature with the law of the State if it imposes a form of deprivation of liberty which in its legal or physical attributes is not known in the State. A sentence shall be regarded as incompatible in its duration with the law of the State if it exceeds the maximum penalty prescribed by the law of the State for a similar offence, or if the criteria for calculation of the duration of the sentence are incompatible with the law of the State. Before adapting the sentence, the court shall give the sentenced person concerned an opportunity to make representation with respect to sentence.".
I am seeking to delete subsection (5) and insert a new subsection. Subsection (5), as it appears in the Bill, deals with the question of an application, under subsection (1), regarding the issue of warrants for people being brought into the State. It states that:
... if the sentence concerned imposed by the sentencing state concerned is by its legal nature or duration incompatible with the law of the State, the court may adapt the sentence to a sentence prescribed by the law of the State for an offence similar to the offence for which the sentence was imposed.
That is the most general approach which could be adopted and is one of the few instances — perhaps the only one — where the question of conversion of sentence to be compatible with Irish law is addressed. A number of questions arise for persons transferred into this State. Not least of these is the question of conversion. The convention appears to envisage that the rules governing remission, etc., should be those in operation in the administering state to which the prisoner is transferred.
This amendment is attempting to make clear, with regard to prisoners transferred into the State, that the level of compatibility will be as high as possible. That level of compatibility is spelled out, as far as possible, in the amendment. The amendment provides that a sentence imposed in a foreign jurisdiction will be regarded as incompatible with a sentence imposed in Ireland, if it means a deprivation of liberty, for example, which, in its legal or physical attributes, is not known in this State.
Under this amendment, a sentence could be regarded as incompatible in its duration with the law of the State if it exceeds the maximum penalty prescribed by the law of the State for a similar offence. For example, if the offence concerned attracts a sentence of three years in Ireland and ten years in a foreign jurisdiction, there would be a conversion of the sentence so that the length of the sentence would be the same in this State for the individual transferred here as it would if the person has been sentenced here in the first instance.
Third, the amendment proposes that if the criteria for the calculation of the duration of the sentence in the sentencing state are incompatible with the law of this State, the sentence would then be regarded as incompatible.
Finally, the amendment allows that before adapting the sentence the court will give the sentenced person concerned an opportunity to make representations with respect to the sentence.
In short, amendment No. 20 would allow the Minister, obviously, as is the case in the Bill, to raise the compatibility of the original sentence with Irish law. It would give the Minister that opportunity, but it would also give the prisoner the right to raise the compatibility of the original sentence with Irish law before the court. As I said, the definition of compatibility would allow Irish principles of appropriate sentencing to be applied as well as Irish maximum sentences.
Amendment No. 21 probably flies in the face of Deputy O'Donoghue's amendment. It involves a slight change. Perhaps we should take amendment No. 21 at the same time because it relates to the business of the court converting or applying the sentence.
I fear that any interference by the court in terms of the warrant would be incompatible. If Deputy O'Donoghue's amendment is an attempt to make a sentence imposed by another state compatible and allow a court to make it compatible with a sentencing policy here in relation to particular crimes, I see that as interference with the sentencing integrity of another state.
In terms of the peace process, it is inevitable that there will be some remission and the return of prisoners serving sentences for paramilitary offences. If that category of prisoner is returned here, the Minister will decide, as an essential part of the peace process, whether to reduce some of the sentences or to introduce remission. Maybe some of those prisoners will become part of a phased programme of releases. That may well occur because of political pragmatism and in the continuation of the peace process but I do not think it would be appropriate for a court to interfere at the warrant stage with the sentence imposed. The court is just applying an official mechanism which adapts the sentence to this jurisdiction and allows the continued enforcement of the sentence in this State. Whatever happens in terms of political interference with those sentences is a matter for the ongoing peace process or, indeed, if they are non-paramilitary prisoners, the ongoing right of the Minister to remit sentences where it is deemed appropriate and in the public interest.
Will the Minister clarify the situation highlighted by Deputy O'Donoghue? For example, if we were talking about recent terrorist atrocities in Britain, in respect of which sentences of 20 years have been handed down, Deputy O'Donoghue's amendment would allow the court the power to change the duration of that sentence if the prisoner was transferred here to complete it. These are big issues but I want the Minister to clarify them because that aspect of the legislation has not been teased out. I feel it might be an unnecessary and undesirable interference with the sentencing policy of a foreign state if — in the context of complying with and ratifying this international convention — the court of the administering state interfered with a sentence imposed by another state.
Amendment No. 21 reads: "In page 8, subsection (6), line 20, after "nature" to insert "and duration" because I feel it would be inappropriate for the court to interfere with the duration of a sentence imposed by a sentencing state.
A situation could easily arise for an Irish-man — I will leave the women out of it — who had become accustomed to the old habit of absorbing alcohol. If he was in a state where alcohol was banned, he could get a very severe sentence. Returning to Ireland, he would be a hero; it would be regarded as pretty normal for one of the lads. If that situation arose, could prisoners be transferred from such countries? If they were transferred, should the State continue to impose the severe sentence other countries have for offences we would not take any notice of here?
I do not think those countries are party to the convention.
(Carlow/Kilkenny): Can a prisoner apply?
As Deputy O'Donnell said, there is a certain incompatibility between these two amendments so, while we are dealing with them together, I will deal with them separately.
Amendment No. 20 in the name of Deputy O'Donoghue raises complex issues. Before dealing with its detail, it may be useful to give some of the background to the approach which is being taken in the Bill. To put it in context, we need to go back to the terms of the convention. The convention allows for the use of one of two procedures in relation to the effect of a transfer in terms of the sentence to be served. The first of these procedures is referred to as continued enforcement; the second is conversion of sentence.
"Continued enforcement" essentially means that where a prisoner is transferred the original sentence continues to be enforced. For example, where a prisoner has served five years of a ten year sentence before transfer, he or she would serve the balance of five years after transfer.
There are limited exceptions under the continued enforcement procedure. These arise where the nature or duration of a sentence is incompatible with the law of the state to which the prisoner is being transferred. For example, a prisoner may be serving a sentence of penal servitude but penal servitude is not a penalty in the law of the administering state. The convention provides that in such cases under the continued enforcement procedure the administering state would adopt the sentence to a sanction provided by its own law for a similar offence. In the example I mentioned the likelihood would be that a penalty of imprisonment for the same duration would be substituted for the penal servitude penalty. The convention provides that where continued enforcement is used the substituted penalty should not aggravate the sanction imposed in the sentencing state or exceed the maximum prescribed by the law of the administering state.
Under the conversion procedure, a state substitutes a penalty of its own rather than continuing to enforce the existing penalty. There are various rules governing this, including a provision that under this procedure the penalty cannot be aggravated. In practice, what this procedure amounts to is that the competent authority in the administering state will regard the facts behind the conviction as having been proved and then impose a penalty as if the person had been convicted in the courts. Continued enforcement rather than the conversion procedure is the approach reflected in the Bill. Under section 5 the court will issue a warrant for continued enforcement but may adapt the sentence where it would be, by its legal nature and duration, incompatible with our law. The advantage of this procedure over a conversion procedure is that it carries with it greater certainty and in the vast majority of cases will be simple to apply. This will particularly be the case in the transfer of prisoners from the UK because of our similar legal systems.
The conversion procedure is much more complex, involving as it does a sentencing hearing. It is recognised in the explanatory report which accompanies the Council of Europe convention that the conversion procedure may take some time and, accordingly, the convention provides for a procedure for keeping the person in custody in the administering state pending the outcome of that procedure. It is difficult to see any advantage to the conversion procedure which would outweigh the difficulties to which it can give rise.
As I understand it the changes proposed in amendment No. 20 have two purposes. The first is to qualify the concept referred to in section 5 (5) of a sentence which is "... by its legal nature and duration incompatible with the law of the State ...". That phrase is taken exactly from the wording in article 10 of the convention. The amendment suggests this should be qualified by stating: "A sentence shall be regarded as incompatible in its legal nature with the law of the State if it imposes a form of deprivation of liberty which in its legal or physical attributes is not known in the State".
While I appreciate the desirability of the avoidance of doubt, I am not sure this form of wording would achieve that. Moreover, given the complexities involved arising from the differences between various legal systems, the best approach would be to leave the wording from the convention enshrined in the Bill without any further qualification, and leave it to the courts to apply this as appropriate in the individual cases which come before them.
The basic purpose of the rest of the amendment would appear to be intended to allow the courts in certain circumstances to operate a conversion procedure rather than an enforcement one. How successfully the actual wording would achieve this, particularly with its reference to "... criteria for calculation of the duration of sentence..", is not clear. In any event, for the reasons which I outlined I regard the continued enforcement procedure as the more appropriate to follow.
The amendment goes on to state that before adapting a sentence "...the court shall give the sentenced person concerned an opportunity to make representation with respect to sentence.". I would see merit in that if we were adopting the conversion procedure and this is being suggested in that context. It would not, however, arise in using the continued enforcement procedure.
The continued enforcement procedure has the advantage of greater certainty and leads to a simplified procedure for bringing about transfers into the country. I do not regard it as doing any injustice to the individual prisoners concerned whose sentences were imposed in accordance with the laws of the state in which the offences were committed. It should have the advantage of expediting transfers under the convention without any risk of injustice to the applicants or the need for costly and protracted court proceedings.
With regard to Deputy O'Donnell's amendment No. 21, article 10 of the convention states that if a sentence is by its nature or duration incompatible with the law of the administering state or its law so requires, that state may adapt the sanction to the punishment by measures prescribed by its own law for a similar offence. It goes on to state as to its nature that the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It does not state that in relation to the duration of the penalty.
That is why in section 5 (6) the words "and duration", which the amendment would insert, were not included. I do not believe that in the context of the process of continued enforcement as provided for in the Bill there is any doubt but that the court would keep as close as possible to the original length of the sentence in the very rare cases where they need to adapt a sentence because incompatibility would arise. In introducing legislation to give effect to the convention it was obviously considered desirable to stick as closely as possible to the actual wording contained in the convention and, for that reason, I would be reluctant to accept Deputy O'Donnell's amendment.
One cannot have a regime which has an absolutist position in relation to continued enforcement. There will be occasions when there will be a need to adapt. Subsection (5) accepts there would have to be a certain degree of conversion of sentence by using the word "adapt"— adaptation is conversion in certain instances. If that much is accepted, even if the Minister will not accept the specification of the circumstances in which conversion would take place, I ask that where adaptation takes place the individual prisoner would have the opportunity to have the court addressed on his behalf or by himself to make a representation with regard to the sentence.
If the sentence is to be adapted in the circumstances envisaged by subsection (5), as a matter of natural justice the prisoner should be allowed to make a representation to the court. We are talking about a different situation that existed when the original sentence was handed down. The sentence is now being adapted and it seems logical that the prisoner should have the opportunity as of right to make a representation to the court.
Deputy O'Donoghue and I are approaching this issue from different perspectives, as the Minister has recognised. I agree with the choice made by the Government in taking the continued enforcement option rather than the conversion. There is a lot of politics in this Bill. It does not give individual rights to individual persons but sets in place arrangements and procedures for two states to agree to the transfer of sentenced persons. Consequently, there is a lot of room for manoeuvre as it will be up to the two states to apply for the transfers and to agree to them. The consent of the individual is paramount but, ultimately, it will be a matter of the exercise of political choices by the two states concerned.
My concern is that any change in the duration of the sentence which may come about in the political context is part of the political process and the power of the executive. It will be transparent because amendment No. 25 will allow for an annual report to the Houses of the Oireachtas. I did not like the idea of the court interfering with the sentence which has been given by an independent judiciary, in the context of upholding the justice system in another state.
I am happy to accept the Minister's response to my concerns as to duration as distinct from nature of the sentence imposed. I am sure the courts will keep as closely as possible to the original nature and type of sentence handed down by the sentencing state. I will withdraw my amendment.
Amendment No. 20, by leave, withdrawn.
Amendment No. 21 not moved.
I move amendment No. 22:
In page 8, between lines 24 and 25, to insert the following subsection:
"(7) The rules governing remission, temporary release or other provisions determing the length of time to be actually served by a person transferred into the State, shall be those currently in force in the State, save only that in no case shall rules less favourable than those in operation at the time of transfer be applied; remission shall be available in respect of the entirety of the sentence and not just the portion thereof served in the State.".
This amendment deals with remission. It should be made clear that the rules governing remission should be those in operation in the State to which the prisoner is transferred. The wording of this amendment is reasonable in that it sets out clearly what the Bill attempts to achieve. Therefore, I ask that the amendment be accepted.
Subsection (4) makes it clear that a High Court warrant authorising the continued enforcement by the State of a sentence imposed outside the State shall have the same effect as an ordinary committal warrant. It follows that, in relation to the portion of the sentence to be served here, the transferee will be subject to the same rules and regulations governing remission, temporary release and administration of sentence as every other person committed to prison in the ordinary way. A basic feature of the convention is that, where a person is transferred to serve the balance of the sentence, the rules which apply in relation to remission in the State generally apply to the balance of that sentence. As part of continued enforcement, remission in relation to the portion of the sentence in another jurisdiction would be the rate applicable in that jurisdiction. If there is any doubt, I will have a look, between now and Report Stage, to see if this can be made more explicit. There is a danger that the Deputy's amendment would have the effect that, where a person has earned remission of a third in respect of the portion of a sentence served abroad, this would be reduced to a quarter on transfer here in relation to that part of a sentence. I am prepared to have another look at this.
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 8, between lines 35 and 36, to insert the following subsections:
"(10) A person transferred into the State shall be free at all times to utilise any procedure available to reopen his/her case and/or challenge his/her conviction in the courts of the sentencing state.
(11) Any document submitted to the court on an application pursuant to this section shall be admissible——
(a) in so far as it consists of a statement of fact, as evidence of the fact, and
(b) in so far as it consists of a statement of opinion, as evidence of that opinion.
(12) Any document submitted for the purposes of an application under this section which——
(a) purports to be a translation of a document, and
(b) is certified as a correct and true translation by a person competent to do so shall be admissible as evidence of that translation and shall be accompanied by an original or an authenticated copy of the document of which it is a translation.
(13) The sentenced person concerned may appeal a sentence imposed under subsection (5) of this section, or a refusal by the High Court to adapt the sentence imposed by the sentencing state to the Court of Criminal Appeal under the following conditions——
(a) if the appellant obtains a certificate from the judge who imposed sentence that the case is a fit case for appeal; or
(b) in case of refusal of such certificate if the Court of Criminal Appeal on appeal from such refusal grants leave to appeal.
(14) Leave to appeal shall be granted by the Court of Criminal Appeal in cases where the court is of the opinion that a question of law is involved, or where the sentencing hearing appears to that court to have been unsatisfactory, or there appears to that court to be any other sufficient ground of appeal.
(15) Section 33 of the Courts of Justice Act, 1924 shall apply to the hearing of an appeal under this section.
(16) Subject to the same requirements as are imposed upon the High Court by subsection (6) of this section, the Court of Criminal Appeal shall have power on such an appeal to remit, or to reduce, or to increase or otherwise vary the sentence, or to dismiss the appeal, and generally to make such order as may be necessary, within the terms of this Act, for the purpose of doing justice in the case.".
This amendment deals with questions of evidence and seeks to make clear that a person transferred into the State will be free to reopen his case or challenge his conviction in the courts of the sentencing state. The amendment goes on to facilitate dealing with evidence from other convention signatory states. The amendment would also allow for an appeal to the Court of Criminal Appeal against a new High Court sentence or a refusal by the High Court to vary the sentence. There is no need for me to dwell on the amendment, it speaks for itself.
Under article 13 of the convention, the sentencing state alone has the right to take decisions on applications for a review or appeal of conviction. The exclusive competence of the sentencing state is justified by the fact that it is best placed to examine and assess relevant evidence. There is nothing in Irish law which would prevent a person transferred here pursuing whatever legal avenues of redress which may be available in the State where he or she was sentenced. The inclusion of the amendment would seek to inscribe in Irish law measures in relation to the laws of other states. We have no jurisdiction to do so and nothing would be gained for the prisoner by the inclusion of the new subsection (10) in section 5, as proposed in the amendment.
The new subsections (11) and (12) proposed in the amendment which deal with technical matters relating to the admissibility of documents would only be relevant if a conversion procedure were being used rather than continued enforcement. The proposed new subsections (13) to (16), inclusive, appear to relate primarily to the introduction of appeals that would arise if the conversion procedure were to be used. In the circumstances, I cannot accept this amendment.
I regret that the Minister cannot accept the amendment. This brings me back, full circle, to the argument I made earlier on and of which I am quite convinced. If, under section 5 (5), it becomes necessary to adapt a sentence and it is done, that is conversion. In some instances it is total conversion. In other instances it is partial conversion but is, nonetheless, conversion. If one accepts that adaptation involves an element of conversion, then one has to acknowledge and accept that these evidential amendments are necessary. Since the Minister does not accept the theory upon which I am basing my statements. I will withdraw the amendment and see what we will do about it on Report Stage.
I accept what the Minister has said about the entitlement of the person transferred to a state to take up his case with the sentencing state. Has anything been done about the costs of something of that nature? If somebody was transferred to Ireland from Britain, the United States, Thailand or wherever and some matter arises about the validity of the conviction or the sentence, where would the court hearings take place? Would the person be transferred back to the sentencing state for hearing? Would facilities be made available? Which country would be responsible for the costs? Is that aspect of the matter being looked into?
The appeal would have to be held in the jurisdiction where the original sentence was imposed. That jurisdiction would be responsible for the matters the Deputy has raised.
Amendment, by leave, withdrawn.
Question proposed: "That section 5 stand part of the Bill."
Section 5 (9) states:
The Criminal Procedure Act, 1993, shall not apply to a person in respect of whom a warrant is issued under this section.
Will the Minister explain that section? I have not had an opportunity to study the section in detail. Why is that Act excluded from applying to such a person?
As I understand it, that section is designed for pardons in circumstances where there has been a miscarriage of justice.
That means that the executive or presidential power to pardon does not apply to people being transferred.
As I already said, that is a matter for the sentencing state, rather than for those who received the prisoners.
The section indicates that the adaptation of a sentence should not aggravate the sentence already served or make it more serious for the prisoner when he or she is received into the recipient state. Perhaps the Minister has addressed this issue already, but there is an anomaly in this country as regards remission, compared to most European countries, particularly Great Britain. We operate a quarter remission, while other countries operate a third remission. This means that anyone coming into this country is at a disadvantage in terms of penalties. For example, anyone coming to Ireland from Britain would suffer in this regard. There is no specific reference to equating that remission with other countries. Perhaps the Minister could clarify if the Department of Justice is considering European conventions and standardising European law so that remission can be equated with other European countries.
As regards a sentenced prisoner taking up his sentence or conviction after the transfer has taken place, many countries would not be willing to accept the costs unless this legislation is extended to other countries. However, there is nothing in this legislation to indicate that the sentencing country has responsibility in this regard. Some countries might renege on that responsibility, although the Minister believes that the cost should be paid for by the sentencing country. I would like to hear the Minister's response.
As regards the section in general, people who are waiting for this legislation to pass wonder what timescale will be involved when this legislation comes into effect three months after the Bill has passed. A request must then be considered by the Minister, a decision taken, warrants issued and people must return to the State. Perhaps the Minister could clarify when it will come into effect and the timescale involved from the time an application is received until the warrants are issued and a person arrives in the State.
I will deal with Deputy Costello's questions first. There are differences as regards remission, particularly the quarter remission here and the third in Great Britain. Remission in Northern Ireland was half until the former Prime Minister, Mrs. Margaret Thatcher, changed it. It may return to half again if things work in a certain direction.
We are talking about a convention and the closer we keep to it, the better. This should also be considered by other countries which might, at a later stage, also sign the convention. It is in our interests and the interests of the prisoners about whom we are concerned to stick closely to the convention. There is a difficulty in this regard because under the convention the rules for remission apply to where the prisoner is transferred; in other words, those coming back here will be subject to our rules for remission. However, one other factor is that the Minister for Justice should, as part of her discretionary powers, consider such matters when releasing prisoners.
As regards the point made by Deputy Woods about the timescale, we hope this Bill is passed before the summer recess. Could the Deputy please repeat the question?
If this Bill is passed in a couple of weeks, what is the timescale from the application is made until it goes through all its stages? The Act will not come into operation for three months after it passes. People want to know the timescale involved. No action will probably be taken until after the three months have passed. What is the timescale from the first application is received until the warrants are issued to bring people back into the State?
If we receive the co-operation we expect to receive in relation to the passage of this legislation and if nothing exceptional happens, we expect prisoners to be transferred by the end of this year.
Question put and agreed to.
NEW SECTION.
Amendments Nos. 24, 25 and 25 (a) are related and all may be discussed together.
I move amendment No. 24:
In page 8, before section 6, to insert the following new section:
"6.—The Minister shall within six months of the commencement date of this Act, and once every twelve months thereafter, lay a report before the Houses of the Oireachtas which shall state, in the case of each person who has been transferred in accordance with the provisions of sections 4 and 5:
(a) the name of the person;
(b) the Convention state from which the person was transferred;
(c) the nature of the offence giving rise to the sentence imposed upon the person;
(d) the duration of the sentence, and
(e) whether the person has been released since the transfer, and, if so, the date of such release.".
The purpose of this amendment is to make the procedure, which is stated in the explanatory memorandum, simple and expeditious so that the repatriation of sentenced persons may take place. That is the purpose of the convention and this legislation. However, it also involves the exercise of important executive and discretionary powers by the Minister for Justice.
Given that a law was being introduced to give effect to the convention, I felt it would be appropriate to go a little further than other states and require a level of accountability and transparency to the Dáil in relation to the exercise of these functions by the Ministers and the Executive. The Ombudsman recently criticised the unfettered discretionary powers which are inadequately evaluated and incapable of being challenged by individuals. The Bill will be improved by containing a provision whereby an annual report is made to both Houses of the Oireachtas which evaluates the performance of the mechanism being put in place.
The Minister has choice and discretion in a whole range of areas. There is much politics involved in this type of legislation because it is not about giving individual rights to people but putting in place procedures between states. As it is about the exercise of Executive powers by two Governments, it is important that a level of accountability is included in the Bill. The areas in which the Minister can exercise discretion include which prisoners, as agreed by the two states, are chosen to benefit from the transfer arrangement. As stated earlier, there is no right to a transfer, rather a right to apply for a transfer. The Minister has been very careful about this aspect and appropriately so because, potentially, a great number of people may seek to transfer back to the State. Given our emigration pattern, many Irish people have been in trouble with the law around the world and it could be an unsustainable burden if everybody applied to return.
It is not unreasonable to allow the Minister some reservation and element of discretion. I support the point that the Minister should have discretion in relation to the choice of prisoners who may be transferred back. The amendment would allow the Dáil to be kept informed of how the procedure is working, what choices the Executive has made in the public interest and perhaps the interest of the peace process and what decisions have been made with regard to the return of sentenced prisoners.
The Minister admitted it is not Exchequer neutral legislation and that expenses are involved, given the high cost of keeping people in prison, particularly if prisoners still have a large part of their sentences to serve. An annual report to the Houses of the Oireachtas would provide a method whereby the cost implication to the State of transferred prisoners may be assessed.
It would also provide an opportunity to examine how it has impacted on the difficulties in relation to prison space. This matter is of concern to me and the difficulties in terms of the lack of space for sentenced prisoners in the State are universally accepted. The Minister rejected my suggestion that, before a person was returned to State, a certificate would be given that no prisoner in Ireland would be released to facilitate the reception of the transferred prisoner. However, the Minister found this impracticable.
I was not referring to paramilitary prisoners in that regard because there is no problem about space for such prisoners in Mountjoy Prison. Adequate space is available for the 35 people who have requested to return here from British jails. I was referring to the unacceptable prospect of releasing sentenced people in Mountjoy and other places in the State to bring in other people who were sentenced in a foreign state. I accept the Minister is being generous in putting forward her amendment. She accepts the need for transparency to the Dáil and that it is cautious and reasoned to allow such reporting to both Houses of the Oireachtas.
The effect of amendment No. 25 would be that each year I would put before the Houses of the Oireachtas, by way of a separate annual report, an account of how all aspects of the Bill have operated. The first such report would cover only a number of months in 1995. However, I am keen to ensure the practice commences as early as possible and that Deputies are kept fully informed of all relevant matters. Deputy O'Donnell made some comments in that regard. In relation to her remarks and earlier amendments, I indicated that the discretion of the Minister should be retained. However, it is fair to say the other side of the coin is that I should report fully to the Oireachtas on how that discretion has been exercised. I fully accept that point.
Amendment No. 24 sets out information which should be included in the report to the Oireachtas. The best approach would be to try to marry the two amendments between now and Report Stage. However, while I do not envisage difficulties in providing some of the details of the type proposed in Deputy O'Donnell's amendment, I have serious reservations about including the names of persons. I am not convinced that any public interest requirement would outweigh the right of individual prisoners to privacy about their affairs.
I accept the Minister's amendment and, consequently, I will withdraw amendment No. 25a. It is necessary that a report be laid before the House. I am glad the Minister accepts that point as he is, to a large extent, exercising what can only be described as a quasi judicial function. I made that view known previously. Where the Minister refuses an application by a prisoner to transfer out of the State, I have no doubt that such a decision would be open to judicial review.
It also appears to me that other aspects of this legislation would be open to judicial review, despite the fact that the Department of Justice apparently takes the opposite view. I am glad the Minister's amendment will be accepted because it is necessary that a quasi judicial function should be seen to be open, fair and transparent. Members of the Oireachtas will only be satisfied that the Bill operated well if they see what the Minister did in the previous year. I will not use the word "properly" as I do not doubt the integrity of the Minister of Justice in relation to the implementation of the legislation.
I compliment the Minister for accepting the amendment proposed by my colleagues. I understand this originated from the Irish Commission for Prisoners Overseas and I compliment its good work in providing briefing material to Deputies on this legislation.
The Minister's amendment ensures there will be an annual report. The first report will be available in the next 12 months because the reports will be available four months after the end of each year. This is as good as one could expect and I understand the availability of an annual report is a first in terms of other countries which have passed similar legislation. I hope other countries will take that idea on board so we can then compare how legislation operates within different countries as well as knowing how it operates here.
I have the same concerns as the Minister in putting forward a comprehensive shopping list of items. These should be taken as guidelines and the best thing to do is take on board what has been put here. There is a big question mark in providing the names of all the persons who have been granted transfers but there are other items that we would also like to see. For example, I would like to see added to the list the number of refusals — that is as important a figure as that for the number who have been given a transfer — and the grounds for a refusal in a given year.
I am glad the Minister, in a previous amendment, showed his willingness to let the person refused a transfer know the grounds for that refusal. When looking at the manner in which the legislation operates, we want to know why people are refused and the number who have been refused in the course of a given year as much as we want to know the number that have been transferred and the reasons for that. I am happy the Minister indicated that she will take all these points on board.
However, I detest a negative attitude from Deputy O'Donnell in that she seems to be concerned with the costs. The transfer of prisoners is a two way process. Some prisoners incarcerated in this country will also look for transfers. We transfer within our existing prison capacity. It is just as expensive to run the prison system irrespective of whether there are prisoners in the prisons.
Operating this legislation will not put any substantial cost on the State. Besides, it is humanitarian legislation. It is geared towards minimising the problems of families of prisoners in visiting their friends and relatives abroad. This humanitarian legislation is primarily in the interest of the prisoners' families, although, of course, it also benefits the prisoners.
I thank Deputies who have had kind words to say and I will pass those kind sentiments on to the Minister for Justice.
The reason I listed guidelines for what would go into the report, which the Minister would be obliged to bring before the Houses of the Oireachtas, was that I did not want an airbrushed and bland report. There should be substantial information in the report to enable Deputies to evaluate how the mechanism operates and the numbers involved. I accept the Minister's point that the name of the person may not be required. It might constitute a breach of a person's privacy. As much information as possible should be given to enable Deputies to evaluate the success or otherwise of the Act and the impact the numbers have had on our chronically disabled prison space system.
I do not accept I am being unduly negative. I am taking a reasonable approach in anticipating, in terms of numbers, what might impact on our capacity in housing our prisoners in this country. The Irish people are more interested in keeping prisoners who have been sentenced for crimes here in Mountjoy Prison rather than in providing a space for returning prisoners by releasing a person sentenced to Mountjoy or any other custodial centre.
A Deputy
What about the prodigal son?
I make no apology for expressing concerns at this stage as to the practical implications of the convention. I am delighted the Minister has accepted the need for an annual report and I am sure my amendment will be acceptable on Report Stage.
Amendment, by leave, withdrawn.
Section 6 agreed to.
Section 7 agreed to.
NEW SECTION.
I move amendment No. 25:
In page 9, before section 8, to insert the following new section:
8.—The Minister shall, within 4 months after the end of each year beginning with the year ending 31 December, 1995, make a report to each House of the Oireachtas on the operation in the preceding year of matters within this Act.".
Amendment agreed to.
Amendments Nos. 25 (a), 26 and 27 not moved.
Sections 8 and 9 agreed to.
Title agreed to.