Private Members Bill

Prisons (Solitary Confinement) (Amendment) Bill 2016


Second Stage speech by Minister of State Sean Kyne on behalf of the Tánaiste


1 December, 2016



I have been asked by the Tánaiste and Minister for Justice and Equality, Frances Fitzgerald, T.D., to respond this evening to this Private Member’s Bill on her behalf as she is unavoidably engaged elsewhere.

Before I begin, may I take this opportunity to place on the record of the House the Government’s condolences to the family of Judge Michael Reilly, the Inspector of Prisons, who passed away last Saturday. He was robust and fair-minded in the way he carried out his work as Inspector of Prisons. He was not afraid to criticise where this was merited, but he retained the respect of everyone involved in penal policy throughout his tenure as Inspector. His loss will be deeply felt by everyone in the prison system – prisoners and staff alike.

I am aware that Deputy Daly has an ongoing and genuine interest in the running of the Prison Service. The Tánaiste appreciates the seriousness of intent behind the bringing of this Private Member’s Bill – the Prisons (Solitary Confinement) (Amendment) Bill 2016 - however the Government must oppose it for a number of reasons. I will summarise these reasons before expanding upon them later.

· First of all, the Bill attempts to micro manage in primary legislation the regime for dangerous, unwell, vulnerable and disruptive prisoners. The Tánaiste believes that the current process of making Prison Rules by way of secondary legislation should continue.

· Secondly, the Bill would restrict the rights and obligations of a Prison Governor to ensure good order and safe and secure custody in his or her prison.

· Thirdly, the Irish Prison Service could not meet the commitment to ensure that all prisoners in such circumstances be assured access to work, education, free association and so on, as provided in the Bill. Indeed, the question arises as to whether the provisions of the Bill in this regard are realistic, and

· Fourthly, the Bill ‘jumps the gun’ in relation to an ongoing consideration of the implementation of the revised UN Standard Minimum Rules for the Treatment of Prisoners - known as the ‘Mandela Rules’ in respect of solitary confinement.

As I will outline later in my speech, the Director General of the Irish Prison Service has established and chairs a working group which meets regularly to review matters relating to protection prisoners and those subject to a restricted regime, including the issue of solitary confinement. The number of prisoners on protection and what is commonly referred to as “23 hour” lock up has reduced dramatically since 2013. A sub-Committee is also examining policy proposals to eliminate insofar as possible solitary confinement from Irish prisons.

It’s also important to place these developments in the wider context of prison reform. Huge improvements have been made to prison conditions in recent years. For example, overcrowding and the practise of slopping out has been eliminated in Mountjoy Prison, a brand new replacement prison was built in Cork and progress is being made in developing Limerick prison.

Turning again to the Private Members’ Bill before the House, as things stand, section 35 of the Prisons Act 2007 - that section which the draft Bill seeks to amend - allows the Minister for Justice and Equality make rules for the regulation, conditions and good governance of prisons. Those rules are currently made in Statutory Instrument No 252 of 2007 (Prison Rules 2007), as amended. Changing Prison Rules by way of Statutory Instrument allows relatively easy adaptability of regimes in changing circumstances. These changing circumstances could derive from developments in prisons in terms of numbers, new regimes, new policies, new buildings, new international practices and so on. In the future, it could be possible to make changes in prison regimes heading towards those proposed in the Bill but the existence of primary legislation may make such changes more difficult to bring about.

In relation to the restrictions in the Bill on the rights and obligations of a Prison Governor to ensure good order and safe and secure custody in his or her prison, it is necessary to examine what the Bill provides and what is provided in the current Prison Rules.

The definition of Solitary Confinement in the Bill is as follows;

“the restriction of a prisoner’s opportunities for meaningful human interaction and communal association for 22 to 24 hours a day, whether by means of restricting the prisoner to a cell or by any other means.”

The Bill goes on to limit solitary confinement to 15 days in all circumstances. It also seeks to guarantee the continuation of access to services such as education and work training as well recreation and association with other prisoners, to those in solitary confinement. It seeks to prevent a prisoner with a mental illness or disability being subject to solitary confinement, to remove the sanction of confinement in a cell as a punishment from disciplinary proceedings and to stipulate that no prisoner on remand be subject to solitary confinement in all circumstances.

In the existing Prison Rules 2007, as amended, there is no mention of or definition of the term ‘solitary confinement’. Rather, there are a specific set of provisions contained in Rules 62, 63, 64 and 66 - under the collective heading entitled “Control, Discipline and Sanctions” - on which basis prisoners may have their normal prison regime restricted for a variety of reasons. The statistics on restricted regimes are published on the Irish Prison Service website -

Rule 62 provides that a direction can be given by the prison Governor to restrict the regime of a prisoner by removing him from structured activity, participation in communal recreation and association with other prisoners on the basis that there is a significant threat to the maintenance of good order or safe or secure custody. This allows, for example, the prison system to isolate gang leaders, other dangerous and serious criminals and those suffering from serious mental illness who pose a risk to themselves and others from the general population. 

Rule 63 provides for the protection of vulnerable prisoners and allows for a prisoner to be kept separately from other prisoners who are likely to cause significant harm to him. This Rule allows Governors to remove vulnerable prisoners from the general population in the interests of the prisoners themselves and the security of the prison in general. This includes vulnerable prisoners who wish or need to be kept away from the general prison population for safety reasons. There are also some prisoners who cannot mix with any other prisoners for various reasons, sometimes at their own request. It would be impossible given current resources to meet the statutory obligation, as the Bill seeks to do, to provide education, work, training, association etc. to such prisoners

Rule 64 provides that a prisoner may be placed in a Safety Observation Cell on medical grounds such as severe mental illness or in a Closed Supervision Cell on the grounds of risk/harm. The Bill would curtail the option of using special observation cells. There has been a significant rise in committals suffering serious mental illness in recent years and a number currently in custody are on a waiting list for admission to the Central Mental Hospital.

Rule 66 provides for procedures in respect of breaches of prison discipline with the option of confinement in a cell for a maximum limit of three days as a form of punishment. Under this Rule, prisoners can only be confined to a cell as a form of punishment up to a maximum 3 days. This is rarely applied and only in the most serious cases.

Strict procedures apply to the making a prisoner subject to these Rules. The Rules contain review mechanisms which prevent them being used in an in arbitrary way. All actions taken in relation to prisoners and the overall system itself are subject to scrutiny by the Inspector of Prisons and this will not change when a successor to the late Judge Reilly is appointed, Moreover, I should say all prisoners including those segregated from the general population already have the protection of the rights established under the Irish Constitution and the European Convention on rights which are enforceable through the courts.

The Bill, if enacted, would also have significant resource implications and it is unclear how these would be met. The Irish Prison Service also believes it would be detrimental to the good order and security of prisons if the most dangerous, unwell and volatile of prisoners were to be guaranteed free association with other prisoners and access to structured activities. Furthermore, there are considerable safety risks in the provision of one-to-one services in such circumstances and, indeed, would involve considerable staff resources which are simply not available.

I want to turn now to the point about this Bill ‘jumping the gun’ in terms of an ongoing consideration of the implementation of the revised UN Standard Minimum Rules for the Treatment of Prisoners - known as the ‘Mandela Rules’. These UN Rules were first adopted in 1957, and in 2015 were revised and adopted as the Nelson Mandela Rules. The vast majority of the principles described in the Mandela Rules, whilst not mandatory, are reflected in the Irish Prison Rules 2007, as amended. However, there are some exceptions and these include the categorisation of prisoners, separate accommodation for prisoners and solitary confinement. It is important to stress that this Bill goes much further that the Mandela Rules in providing for the right to access to work, training, education, rehabilitation and other services whilst on restricted regimes.

Although Ireland has not yet signed up to the Mandela Rules it is recognised that they are regarded as a source of standards internationally in relation to treatment in detention. Although the Irish Prison Service is committed in its current Strategic Plan to compliance with international human rights obligations and makes specific reference to the Mandela Rules, the nuts and bolts of this need to be teased out. To that end, the Director General of the Irish Prison Service has established and chairs a working group which meets regularly to review matters relating to protection prisoners and those subject to a restricted regime which includes the issue of solitary confinement.

Already, significant progress has been made. The number of prisoners on protection and what is commonly referred to as “23 hour” lock up has reduced. Since July 2013, the number of prisoners on 22/23 hour lock up has decreased from 211 to 31 - a decrease of 85%. The working group is continuing its work with a view to eliminating “23 hour” lock up from the prison system. However, the protection of vulnerable prisoners can be quite challenging and the elimination of “23 hour” lock” is not something which can be achieved overnight but is one which the IPS is committed to eliminating, to bring it into line with the Mandela Rules.

The Director General has also established a sub-Committee to draft a policy with the aim of eliminating insofar as is possible solitary confinement from Irish prisons – acknowledging that there will always be medical exceptions, particularly given the number of seriously mentally ill prisoners currently held in Irish prisons and awaiting admission to the CMH and other mental health facilities. The Policy will be presented to senior management for consideration, by end January 2017.

After the policy is developed and implemented, the Tánaiste could then consider whether to commit to signing up to adopting the Mandela Rules in this specific area by way of amendment to the Prison Rules.

In conclusion, the Tánaiste acknowledges Deputy Daly’s intent behind this Bill but believes that she cannot accept it, both in terms of the content and in terms of the legislative vehicle being used. The use of Prison Rules, done by way of statutory instrument, remains, in her view, the most effective and efficient way of adapting to changing circumstances. In terms of the substance of the issue, the Tánaiste supports the ongoing efforts of the Irish Prison Service to develop its policy on this issue in a way which improves the conditions of prisoners while having equal regard to safe and secure custody of prisoners overall and to good order in the prison.