Criminal Records (Exchange of Information) Bill 2019: Committee Stage

This meeting has been convened to consider Committee Stage of the Criminal Records (Exchange of Information) Bill 2019. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable. I remind those present to turn off their mobile phones as they interfere with the sound recording equipment.

We are joined by the Minister for Justice and Equality and his officials, who are all very welcome. Would the Minister like to make any opening remarks before we address the work in hand?

I acknowledge the Chairman and the committee's accommodation of this small but not unimportant legislative item. Before I speak to the three technical amendments I intend to move in respect of the Criminal Records (Exchange of Information) Bill 2019, I will briefly summarise the Government’s position in respect of the Bill. As this committee is aware, the Bill is transposing two interrelated EU legislative acts, namely, Council Framework Decision 2009/315/JHA of 26 February 2009 and Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European criminal records information system, ECRIS. This system allows for the transfer of criminal record information between member states for use in criminal investigations and proceedings and for other proceedings and matters where it may be necessary for authorities to run a check on such information.

It also creates a specific obligation on each member state, for example, Ireland, to inform those other member states when their national citizens are convicted of criminal offences here. Pending legislation, the National Vetting Bureau of An Garda Síochána exchanges this information with authorities in other member states on an administrative basis and in accordance with the framework decision. This Bill will place those procedures and requirements on a statutory basis. It will not give An Garda Síochána any new powers but rather will codify the procedures to apply to the exchange of criminal records information on relevant EU nationals with other countries in the EU.

The committee will also be aware that we are currently subject to infringement proceedings on account of the delay in our notifying measures for the transposition into our national law of the framework decision. This delay is due to competing legislative priorities during the period since drafting of the Bill was approved. Regard needed to be taken of the new EU Commission's proposal, which emerged in intervening times, to change the ECRIS. I am eager to ensure that this situation is addressed. I was pleased that we could approve the publication of the Bill in July 2019. As members will be aware, the Garda National Vetting Bureau has been operating ECRIS on an administrative basis. We are now underpinning this with legislation.

The amendments are related. There are three interconnected amendments relating to section 6(1) of the Bill providing for the general parameters-----

We will hold the amendments because they do not come up in the first section. We will take the amendments in the order in which they appear. I thank the Minister for his opening remarks.

Sections 1 to 5, inclusive, agreed to.
SECTION 6

Amendments Nos. 1 to 3, inclusive, are grouped and are all in the name of the Minister.

I move amendment No. 1:

In page 8, line 22, to delete “by or under any enactment or rule of law for”.

Amendment No. 1 removes text that might have operated as an unintended restriction on our central authority requesting information from other member states for the purposes of criminal proceedings here. It might not always be the case that such criminal record information is legally required for criminal proceedings. I am proposing that the reference to “by or under any enactment or rule of law for” be deleted in this subsection in order that the Garda National Vetting Bureau is not unnecessarily constrained in its requesting of information from other central authorities for the purposes of criminal proceedings against a given person in this jurisdiction. This is in accordance with the provisions of the governing European framework decision. The limitation on the Garda National Vetting Bureau requesting criminal record information under ECRIS, provided for by the reference to “by or under any enactment or rule of law”, is only applicable in the context of specific purposes other than criminal proceedings that are set out in Schedule 3 to this Bill.

Amendments Nos. 2 and 3 are consequential amendments to the removal of text in amendment No. 1 in order that the text of the subsection, following this removal, reads appropriately.

The Minister addressed a question I had regarding the operation of the Bill. If I understand him correctly, the Minister said that An Garda Síochána can request information in cases other than criminal cases. I am very worried because it appears that An Garda Síochána has been requesting and providing information across the board for a number of years without any legal or statutory basis.

I want to tease out that because, if I am right, it is potentially very serious. Will the Minister address some of the concerns I have mentioned?

With regard to the European criminal records information system that has been operational for a number of years, going back to April 2012, and which is operated on an administrative basis by An Garda Síochána, what we are now doing underpins this system in statutory legislation that sets out the requirements of the framework decision. The fact that it has been operating on a non-statutory basis does not, in any way, affect the authority of An Garda Síochána or the legitimacy of the process because it comes under the framework decision as agreed.

To further explain what the Minister has said, anything the Garda has been doing has been okay and this Bill just puts it on a statutory footing. Surely one would first have to have a statutory framework to make it okay.

No. Operating this on an administrative basis was accepted throughout the European Union. A timeframe for the formal transposition of the framework directive was given. There are no circumstances in which any of the information sought by way of exchange of criminal records was given in a way that was less than legal because the directive was agreed by EU member states.

Is ten years within the timeframe agreed?

I accept there has been a delay here. I point to legislative priorities within the Department during that time. This is why I am very keen to now proceed to finalise matters.

Surely if an agreement had been made and a system operating, it would be a legislative priority to put it on a statutory footing. One would imagine that would be somewhat of a priority within the Department.

I have already said that there was something of a delay as a result of competing domestic legislation in the criminal justice area. We approved the drafting of the Bill in 2012. We also had to take account of the European Commission's proposals in the form of a 2016 directive and a regulation in 2019. These were designed to change and further adapt the records information system. As I have said, the Bill has been subject to some delay. That is why I am keen to proceed with this at the earliest opportunity, which is now. I am grateful to the committee for making time available. I am very keen to be in a position to enact the legislation before the end of the year.

My questions were similar. How many other European countries are still operating this legislation on an administrative basis? What is the deadline for transposition?

I do not have information on the number of other European countries doing so to hand. I can say, however, that in the normal course of events, a particular period of time is given within which appropriate domestic legislation is to be enacted. From our perspective, it is important that we proceed with our own domestic legislation, which we are now doing. Since our central authority, the Garda Síochána, was connected to the system a number of years ago, we have been in a position to exchange information with the central authorities in other member states, particularly on issues of national security and counterterrorism across the European Union. We are now placing this on a statutory footing in accordance with what other EU member states have been doing in recent years.

Is the Minister aware of other member states that have yet to transpose the directive?

Has there been any legal challenge to the operation of this system on an administrative basis?

Not that I know of, no.

I will make a more general point on an issue that was before the committee in the past and which continues to come up. It is important that all Departments, and particularly the Department of Justice and Equality, continue to carry out assessments on legislation required to ensure full compliance with our international obligations. All Departments, not only the Department of Justice and Equality, need to be in a position to prioritise legislation in order to facilitate the transposition of these directives in a more timely manner.

I agree with the Minister. For some European context, it would be good if his Department could let us know where we are in respect of this transposition.

I agree there are domestic pressures but we need to fulfil our EU obligations as this system operating without a statutory footing could undermine actions taken over the last ten years. That is just a general point.

Will the Minister come back on this issue?

I will do two things in that regard. I will inform the committee of the position regarding our EU colleagues and, perhaps more importantly, I am keen to provide the Chair of the committee with a table laying out our position in respect of other directives in the area of criminal law for distribution to members.

That would be very good.

This will also include a proposed timeframe for their transposition and will ensure that the committee is fully aware of the work the Department is doing on these issues.

I seek clarification on the issue of spent convictions. I know we are updating our legislation in this area. What information is shared in respect of spent convictions? I hope it is none. Will the Minister clarify the situation?

The Bill relates to the exchange of records of criminal convictions. I do not envisage a situation in which spent convictions would be the subject matter of exchange because, by their nature, they are spent. We are currently updating the law in this area. Committee Stage of a Private Member's Bill is to be taken in the Seanad this evening. This will update the schedule of offences and terms of custodial sentences in order to bring a greater number of convictions within the scope of what can be described a spent conviction.

I welcome that and it is very positive but is there provision to ensure that spent convictions are not shared with other countries? That is my question. Has this happened on an ad hoc basis up to now?

I am happy to take this issue up with the central authority. I am of the view that in the event of a conviction being spent, it would not be the subject matter of a request for the exchange of criminal records.

One would hope so but we must ensure that is the case, must we not?

I will check with the central authority and provide that information to the Deputy.

I will raise two quick matters, although Brexit is never quick. In the event of England departing without an agreement, how stands our agreement with England? What is the situation in respect of information already shared? Perhaps it is nothing but countries differ and some include matters in the sharing of information that we would not. Some countries would designate certain actions as criminal that other countries would not. Will the Minister clarify the situation in that respect?

On the matter of the withdrawal of the UK from the European Union and the question of whether the UK authority will retain access to the ECRIS, I do not wish to engage in any speculation but this has been the subject of discussions between our respective jurisdictions. It is certainly my wish, as Minister for Justice and Equality with responsibility for the criminal justice area, and the wish of the Government that the relationship between the UK and the European Union would be as close as possible following the withdrawal of the UK from the Union.

I am aware of the value and importance of a positive and co-operative engagement and relationship, not only in the sharing and exchange of ECRIS type information but across a range of security issues. I do not wish to speculate on what the outcome will be and on whether the withdrawal agreement will take effect sometime next year, which would facilitate the movement into the future relationship. In the criminal justice area and in the matter of international security, there are issues of a fundamental nature that will be the subject of discussion. It is my intention to ensure there would be the closest possible relationship, having regard to our geographic proximity, to the common travel area arrangements and to our North-South arrangements.

My last question was on the differences between countries and where something is a crime in one country and not in another. The bigger question is that this has been operating on an ad hoc basis for quite some time. What problems and challenges have emerged over that time? Has the Department of Justice and Equality done a review to see what difficulties there are with the type of information that is shared or not shared, with whether a crime is a crime in one country and not in another and with spent convictions? That would seem most opportune. The legislation is necessary and I agree with it but what have we learned from the ad hoc administration of it? What problems and challenges have been thrown up?

Can the Minister shed any further light on what he has already said?

I would not use the words "ad hoc" as that would indicate to me it was in some way inconsistent or devoid of any framework. I would invite members to look at the Schedule to the Bill before us to see the common table of offences that have been characterised. It has been a feature of the administrative engagement and system since 2012 that there is a clearly defined framework and that there are schedules itemising specific offences in a way we are now enshrining in legislation, rather than merely formalising on the basis that I would not accept it was informal or ad hoc. There was a framework. We now have the statutory underpinning of that framework. The Deputy can see the wide variety of criminal offences that will now be the subject matter of the legislation.

Did the Deputy have anything further to add?

No, it is just a general point and it happened lately with the Civil Legal Aid Act 1995 and the poor uptake on same. It seems to me as a general point that the Department might look at issues such as that as a learning exercise. The Civil Legal Aid Act 1995 is good. It is off topic but it is the same point. The legislation was brought in and the uptake by victims was low but there has been no review of that. Similarly, a review of a system such as this would be helpful to identify problems.

All we can do is ask the Minister to give some consideration to the Deputy's urgings.

I would give consideration to that. By coincidence, this was the subject matter for a parliamentary question from Deputy Pringle earlier. I would be happy to engage further on that. The uptake is low. The system applies across the country. There is no regional disparity but we need to look at why the uptake is so low and whether a greater level of information can be supplied because it appears to me that in some circumstances victims and complainants might not be fully aware of the Act. I indicated to Deputy Pringle in reply to his parliamentary question that I would be happy to engage further and I say the same to Deputy Connolly. Looking through the Schedule here and going back to Deputy Connolly's earlier question, we have the codification of offences here before us but there may well be something of a less than consistent feature on the matter of spent convictions. In other words, there might be a conviction that is spent here and governed by our legislation that might not necessarily be covered by our international colleagues. It will depend on whether a conviction is spent in another jurisdiction. That will be a feature of the exchange of information. If an offence is spent here and is not spent in another jurisdiction, that will have to be taken into account in the context of the transfer of information.

What does that mean? Does it mean we will not share that information or we will share it? If it is spent in this jurisdiction, will we share that?

I do not suppose we will on the basis it is spent here and is not regarded as a conviction here.

Perhaps that could be clarified in the course of the process because it is important.

I would be in favour of that.

We have all considered the point.

Let me clarify the matter by way of a note from the central authority to the Deputy. In cases where there is something of a similar jurisdiction in terms of the treating of convictions in both EU states, it would seem clear to me the central authority would not be exchanging that information on the basis of it having been spent in both jurisdictions and on the basis it is no longer applicable.

I have made my point but it brings home the need for a review. I take the Minister's point about the term "ad hoc", but with a system that does not have statutory undertaking for such a long period of time, a review is essential. Similarly, with legislation that is in place but is not being taken up, reviews are essential. That is the bigger point. That review should be informing the Minister today on the issues that have been identified as challenges and problems so we can pass proper legislation.

The Minister has undertaken to give that consideration post today's meeting. Am I correct on that? Can I take it we have the Minister's assent?

I am not undertaking to institute a formal review. I said to Deputy Pringle I would be happy to engage further to determine the reasons the Civil Legal Aid Act 1995 has had a low uptake. The Civil Legal Aid Act 1995 has been updated by a numbers of Acts, not least the Criminal Justice (Victims of Crime) Act 2017, which placed the victim and complainant centre stage. I would have thought issues in the context of the debate surrounding that legislation might have increased the information level to ensure a greater uptake. That Act only came into force last year, so it is less than two years ago. I am not downplaying the point raised by Deputy Connolly and I will engage further.

There are two issues, namely, the Criminal Justice (Victims of Crime) Act 2017 and, generally, the operation of a system without a statutory basis being changed. That is welcome but there has been no review of the problems, challenges or success of this system without a statutory underpinning so we can be properly informed.

The system heretofore.

Of course. The point has been well made by Deputies Connolly and Pringle, and Deputy Jack Chambers reflected on it. All we can do at this time is to impress that on the Minister and to ask for his most favourable consideration of the proposition. I move on to Deputy Martin Kenny.

I thank the Minister for his presentation. Most of the relevant questions have already been dealt with. There is one thing that strikes me with this. A conviction may be spent, and I have an example of this from an individual who came to me about this a number of years ago, where in his youth he had issues with mental health problems and got into spots of bother, as he described it, and it was reported in the media. To this day, when one searches for his name on Google, this matter comes up. Even if his conviction was spent, what would the position be there? If an employer or someone were to search for his name, he would run into this difficulty. He contacts the publications that published the stuff about him, which is in his past entirely and he is a different person now to who he was then, but this continues to be a shadow that follows him around all of his life. That is unfair and unfortunate and everyone would agree with that.

I am aware of a similar situation of a young person who had a small drugs conviction. Again, this continues to follow him around.

Although this legislation may deal with the official element of spending the conviction it will still not deal with that issue of a record of it existing in the media and on social media, and in how court reports are made and how they are sometimes available through national publications such as national newspapers. The record is there to be found, forever it seems. This needs to be looked at. Often it is not the official conviction but the reporting of it that has the most impact. This is certainly the reality for the two people I have spoken to. While I am aware that it is totally outside of what can be legislated for and what we are speaking about today, it needs to be examined to see what we can do to deal with that aspect.

That is a fair comment. I remind the Deputy, as I did earlier, that this is the subject of debate under a Bill that is in the Seanad this afternoon. I too am keen to ensure the issues that have informed Deputy Kenny are referenced as we review the spent convictions legislation. The object of it, and the whole idea behind it, is to ensure that if a conviction is spent, it is done and that it does not form any part of adverse influence on a person's employment prospects, social interaction or wish to travel to another jurisdiction. I would be concerned if media reports were continuing, having regard to the passing of the inclusion of the offence, as in the case the Deputy has referred to. It is an ongoing debate, which is currently before Seanad Éireann. It may well come before this committee early in the new year.

The committee has already addressed it in pre-legislative scrutiny. It is Senator Lynn Ruane's Bill.

While it was not an actual pre-legislative scrutiny, the committee did a report on it, and it will come to us.

Amendment agreed to.

I move amendment No. 2:

In page 8, line 23, to delete “the purposes” and substitute “for the purposes”.

Amendment agreed to.

I move amendment No. 3:

In page 8, line 24, to delete “a purpose” and substitute “by or under any enactment or rule of law for a purpose”.

Amendment agreed to.
Section 6, as amended, agreed to.
Sections 7 to 15, inclusive, agreed to.
Schedules 1 to 4, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.