"Will no one rid me of this turbulent judge?" is a thought that must from time to time flash across the mind of Minister for Justice Michael McDowell, writes Mary Raftery
In April 2002, retired justice Dermot Kinlen was appointed to a position where, as he said in his first annual report, the expectation was that "I would not do any real work". As the country's first inspector of prisons since 1835, he has thoroughly confounded those expectations.
His annual reports, the latest of which appeared last Friday, make for refreshing reading. Clearly written by himself, they are somewhat conversational - even eccentric - in tone, giving a vivid insight into the mindset of a dedicated and well-meaning servant of the public frustrated at every turn by what he perceives as the "mantra of secrecy" of those sections of government dealing with prisons.
Justice Kinlen has indeed had a turbulent relationship with the current Minister for Justice. The inspector's second report (for 2003-2004) was suppressed by the Minister for almost a year, and was finally published last April with some sections censored. There were, apparently, concerns from the Attorney General about libel.
According to the new draft Prison Rules, Mr McDowell has the power to remove any section of the inspector's report he deems "against the public interest". This power is so wide-ranging - the Minister, for instance, might consider any criticism of himself or his policy to be contrary to the public interest - that it makes a joke of the purported independence of the office of inspector of prisons. This point has not been lost on the forthright Mr Justice Kinlen.
In his most recent report, he wrote: "I am gravely concerned about the independence of my office and certainly my reports will not be censored just because officials don't like it and threaten to take proceedings. I told the Minister I would gladly defend any proceedings in respect of my reports."
Warming to his theme, the judge continued: "The Minister has accused me of being unjust and has suggested that my report is not fair, professional or in accordance with my mandate. I wonder would the Attorney General agree with me that possibly those statements could be construed as defamatory? I certainly do not wish to sue the Minister for defamation but if I have to do so for the future of my independent inspectorate, I certainly will do so."
Interestingly, the inspector's threat to sue the Minister for defamation received little media coverage. Reading that coverage and indeed the Department of Justice's press release accompanying the publication of the inspector's latest report, you would think its primary focus was a recommendation to privatise the prison service.
This effective piece of spin from the department gravely misrepresents the report. In 81 pages, he devotes only one (about the middle of the document) to the matter of privatisation, and his suggestion that it be put on trial in a single prison is the last of 12 recommendations. These deal primarily with the independence of his own office, and with the very real problems within the prison service of over- spending, lack of efficiency, obstructive bureaucracy, lack of rights for prisoners, and the disgraceful conditions in some prisons, particularly at St Patrick's Institution for young offenders.
This unwarranted emphasis on the inspector's views of privatisation fits neatly into the Minister's current agenda of repeatedly using the threat of privatisation in his battle with the Prison Officers Association over their overtime payments. He has told them that if they do not agree to his proposals to reorganise overtime structures, he will privatise several prisons and the prison escort service.
The concept of introducing a profit incentive to the business of locking people up is one that it is vital society discusses and debates with great care. It is most certainly not one which should be used as a threat to whip a trade union into line, whatever the rights and wrongs of the particular dispute in question.
It is instead a matter of major public policy, which must be weighed and sifted on its own merits. Other countries have tried it, with mixed and often negative results, as the Irish Penal Reform Trust points out. And many of these countries have robust inspection and complaints mechanisms in place, which we lack, as Justice Kinlen himself points out.
We have had in this country considerable experience with the privatisation of sections of our system used to incarcerate people. The reformatory and industrial schools, which imprisoned so many thousands of children, were a classic model of privatisation, with the State funding and regulating a system run entirely by private organisations.
Given the gross abuses we now know occurred within that system - which after all was run not for profit but for theoretically altruistic and religious reasons - we should be exceedingly cautious about the idea of farming out the management of prisons to private interests for their own financial gain.