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

I am pleased to present the Criminal Records (Exchange of Information) Bill 2019 to the House.

The purpose of this Bill is to provide for the exchange of criminal record information between Ireland and other EU member states. The Bill will transpose Framework Decision 2009/315/JHA on the organisation and content of the exchange of information extracted from the criminal records between member states. It will also transpose the associated Council Decision 2009/316/JHA on the establishment of the European criminal records information system, ECRIS, in application of Article Il of the framework decision, which provides for the format and other ways of organising and facilitating exchanges of information on convictions. These EU instruments provide for this information exchange between member states.

The key framework decision to be transposed within this Bill was developed and agreed at member state level in response to the wishes expressed by the European Council a number of years ago. At the time, it was agreed that significant value was to be derived from a system allowing the reliable exchange of criminal record information between member states, particularly in the context of free movement across borders. The need to share such information and the guiding principles for doing so form the basis of the relevant framework decision, while the format and detail involved in the transmission of criminal record information is set out in the associated relevant Council decision, which established ECRIS.

ECRIS was designed to achieve an efficient, uniform exchange of information on criminal convictions between EU member states and to ensure that an individual's criminal conviction was effectively communicated and stored regardless of where in the EU that person was convicted of the offence. The ECRIS Council decision implemented the principles underpinning its associated Council framework decision in order to build and develop a computerised system of exchange of information on convictions between member states. The framework decision required the establishment of "a standardised format allowing information to be exchanged in a uniform, electronic and easily computer-translatable way". The resulting ECRIS was ultimately established in April 2012 in order to improve this exchange of information on criminal records throughout the EU. All EU countries are currently connected to ECRIS.

The Criminal Records (Exchange of Information) Bill which I am introducing to the House today transposes these European instruments into Irish law. This system allows for the transfer of criminal record information between member states for use in criminal investigations and proceedings, and for other relevant proceedings and matters where the sharing of this information is warranted. It also creates a specific obligation on each member state to inform other member states when their citizens are convicted of criminal offences.

In a European area of freedom, security and justice, every effort must be made to ensure an effective European response to criminal activities, in particular serious cross-border crime and terrorism. The European agenda on security highlights the need to maximise EU measures on information exchange and operational co-operation. The rapid and efficient exchange of information extracted from criminal records between competent member state central authorities is important if we are to avoid national courts passing sentences on the sole basis of past convictions registered in national criminal records, with no knowledge of convictions in other member states, thus allowing criminals to escape their past by moving between member states. Within the ECRIS framework, each EU state is responsible for establishing a central authority for operating the information flow relating to criminal records within their state. The national vetting bureau, NVB, of An Garda Síochána has been designated as the central authority for Ireland. Pending legislation, the NVB exchanges this information with other member states on an administrative basis and in accordance with the framework decision. This Bill will put these procedures on a statutory basis.

The proposed Bill would not give the Garda new powers, but rather codify the procedures which apply to the exchange of criminal records information on EU nationals with other countries in the EU. Currently, the NVB conducts four core actions within this framework. It submits requests to the central authorities of other member states for extracts from their national criminal records in respect of nationals of the member state concerned in instances where the information is required in connection with criminal proceedings in this country; responds to requests from central authorities in other member states for extracts from Ireland's criminal records database in respect of Irish nationals, in instances where the information is required in connection with criminal proceedings in the other member state; receives, stores, and updates where necessary Ireland's criminal records database with relevant information received from central authorities in other member states in respect of Irish nationals convicted in those other member states; and transmits information, and any necessary updates, in respect of criminal convictions imposed in Ireland on all nationals of other EU member states to the central authority of that member state of the convicted person.

Something as sensitive as an individual's criminal record should be subject to the most stringent protections available when it comes to translating, transmitting, and using the information contained therein. The coming into force of the General Data Protection Regulation, GDPR, and the law enforcement directive have established new data protection standards and provided for significant reforms to previous data protection rules. Ireland's Data Protection Act 2018 has given effect to GDPR and transposed the law enforcement directive. The material impact of this new data protection regime on our careful transposition of this ECRIS framework and Council decisions has been considerable, and this Bill has been subject to extensive and detailed consultation with both the Office of the Attorney General and the European Commission over the past 12 to 18 months. I note that the Data Protection Act 2018, and the Data Protection Acts 1988 and 2003, as retained by the 2018 Act, apply to personal data held by the national vetting bureau in respect of any criminal record information that may be transmitted under the provisions of this Bill. This Bill and its parent framework decision also allow any person to obtain information on their own criminal record, and to have any incorrect data corrected or deleted.

I turn now to the contents and provisions of the Bill itself. The Criminal Records (Exchange of Information) Bill consists of fifteen sections and four schedules. Section 1 is a standard provision defining words and phrases used in the Act. Section 2 provides for the designation of a central authority as required by the framework decision. The Commissioner of An Garda Síochána is designated as the central authority. Section 3 provides for the recording, when available, of the nationality or nationalities of EU nationals who are convicted of an offence. This information is necessary to ensure relevant central authorities throughout the EU can have up-to-date information in relation to a person's convictions.

Section 4 provides that the Irish central authority, when available, must transmit criminal record information to the relevant central authority in the member state of a person's nationality. Any update and subsequent change, including deletion of this information, must also be transmitted to the relevant member state's central authority. Section 5 provides for the storage of information received from other member states relating to convictions in member states of Irish nationals.

Section 6 provides for the circumstances in which the Irish central authority may - and in some cases must - request information on convictions from other central authorities. This section also provides for the format in which these requests should be made. Section 7 provides for responses to requests from other central authorities and the related categories of information, which can be transmitted in relation to a person who is a national of the State. It also provides for any limitations on the retransmission of information. Section 8 provides for responses to requests from other central authorities and the related categories of information which can be transmitted to other central authorities in relation to a person who is not a national of the State.

Section 9 provides for deadlines to respond to requests for information. Section 10 provides for the electronic transfer of information, which will be referenced in accordance with the common codes agreed by member states and contained in the implementing Council Decision 2009/316/JHA. This decision and these codes are included in schedule 4 of the Bill. Section 11 provides for safeguards on how and when personal data which is received and transmitted can be used. This section provides that such transmissions are in accordance with the General Data Protection Regulation and the Data Protection Act of 2018.

Section 12 provides that when the Irish central authority receives a request for information on an Irish national from a country other than an EU member state, the Irish central authority can only provide information subject to the limitations outlined in section 7 which relate to any limits placed on this information by other member states. Section 13 provides that this Bill does not affect any obligation or power to provide or request information under any other law. Section 14 is a standard provision providing moneys for the administration of this system. Section 15 is a standard provision which provides for the short title of the Act and its commencement.

Schedule 1 includes the full text of the relevant framework decision. Schedule 2 lists the information which can be provided on request. Schedule 3 lists the other purposes, in addition to that of criminal proceedings, for which information can be exchanged. Schedule 4 includes the full text of the implementing Council decision.

The implementation of ECRIS can clearly be seen as a positive step from the previous administrative approach to the sharing of criminal conviction information between member states, and I am pleased that this Bill will place our use of ECRIS on a statutory footing. It must be noted that a degree of urgency is now attached to the full enactment of this legislation, given that in July 2019 the Commission issued Ireland with a reasoned opinion on account of the delay in our notifying measures for the transposition into our national law of Framework Decision 2009/315/JHA. This transposition was delayed due to domestic legislation which was a greater priority at the time, and regard needed to be taken of the EU Commission's proposals to change ECRIS and how these would progress.

Ireland is now required to inform the Commission of the measures we have taken to facilitate transposition and I am confident that I will have the support of this House in this regard, in order that this Bill, which gives effect to full transposition, can now proceed through it as soon as possible. The transposition of these ECRIS decisions is a matter of high priority not only so the transposition may be faithfully completed as soon as possible, but also because this system and its future development is part of a package of measures to enhance law enforcement, judicial co-operation and information exchange in the European Union and counter the increasing threat of terrorist and organised criminal activity across Europe.

The European Parliament and Council's political agreement on the Commission's proposal to create a central ECRIS-TCN system to improve the exchange of criminal record information on convicted non-EU citizens, third country nationals, and stateless persons through the existing ECRIS has further underscored the importance of placing the use of this system on a statutory footing as soon as possible by giving effect to the relevant European instruments. Accordingly, I am pleased to present and commend this Bill to the House and I very much hope that it can quickly progress to enactment. Go raibh maith agaibh.

Delivered at breakneck speed. I thank the Minister of State.

As the Minister of State indicated, the purpose of the Bill is to transpose into Irish law two decisions, one of which is a framework decision and the other a Council decision from 2009. Fianna Fáil will support the Bill.

It is important to point out that the decisions we seek to transpose are of some antiquity. The comments I will make are not a criticism of the Department of Justice and Equality, but it would be remiss of us if we did not reflect on the fact that it has taken us ten years to start to transpose these decisions into Irish law. Such is the antiquity of these decisions, as with the framework decision, that we no longer have framework decisions as they were finished as a result of the Lisbon treaty.

Both decisions seek to regulate the exchange of information around criminal records within European Union member states. Both of the decisions are very beneficial and of use to the Irish criminal justice system and to the co-operation that goes on between EU member states.

Although the decisions were made ten years ago, in fairness to the former Minister, Alan Shatter, he announced in 2012 that legislation was being prepared to transpose the decisions in to Irish law. It was seven and a half years ago when Alan Shatter announced that the legislation was being prepared, but it is only being introduced in the Dáil today. I suspect that part of the reason it is being introduced now is that, unfortunately, in 2018 the European Commission had to send a warning letter to Ireland saying it was in breach of its obligations around the transposition of these decisions, and that it needed to hurry up and do it. I welcome the fact they are now being transposed but we need to reflect on the fact that in respect of the many decisions and directives that we need to transpose into Irish law, there is huge delay on the part of the State. This is not a criticism of any individual Department. In fairness to the Department of Justice and Equality, it has to deal with a huge amount of legislation. Even though we do not adopt all the justice issues that emanate from the European Union, much law comes through the criminal justice brief, which requires us to transpose decisions into Irish law. We need to reflect on our delay and try to get a system in place to speed it up.

As the Minister of State, Deputy Stanton, said, the purpose of the Bill is to try to introduce co-operation with the exchange of information about criminal records. The Minister of State referred to the European criminal records information system, ECRIS. Part of the reason there has not been huge urgency in bringing legislation like this forward is that since 2012 An Garda Síochána has applied ECRIS and has used it, to all intents and purposes, the way it will be used after this legislation is enacted. On one level, Ireland was not at a huge disadvantage as a result of the non-transposition of these decisions. As an earlier debate in the Chamber has taught us, we have to be very careful about the State engaging in any administrative action or any Executive power when it does not have a legal basis for doing so. The Government got into difficulty with the public services card, PSC, in seeking access to details on the card from citizens when accessing other services such as passports. The Data Protection Commissioner stated her opinion recently that this was an unlawful use of the public services card because there was no legal basis on which it was required. Similarly, we have to be careful about exchanging information about criminal records when we do not have a legal basis to do so. I welcome that this will be rectified when the legislation is enacted. I am not suggesting there would be legitimate legal challenge to the system operable at present but the State must be careful to ensure it always has a legal basis for carrying out State actions.

As I said, ECRIS is currently operated by An Garda Síochána and the Garda national vetting bureau acts as the designated central authority for criminal records in Ireland. Under the proposed legislation this function will pass to the Garda Commissioner and he or she can delegate it to another section within An Garda Síochána.

The purpose of ECRIS is that the Garda can make requests of the central authorities in other EU member states to find out information about citizens or persons from other member states to see whether they have a criminal record. Requests can be made to Ireland from central authorities in other member states asking for information, probably about Irish citizens or people who have been resident here, to determine whether they have a criminal record. We store much information on people who have committed criminal offences. It is important we do so, especially in respect of the more serious criminal offences.

The issue as to the purpose of a criminal record arises. Criminal records can be a huge disadvantage to people who accumulate them when they are younger, as the Acting Chairman is aware from his work. Many people come to us as Deputies when applying for a job with the State or a job in the private sector and they are required to give details of any criminal record they have. It can be very debilitating for them because although they may have completely rehabilitated themselves, it can act as a serious deterrent to employers and others when they find out the person they are about to hire, or to use for another sensitive purpose, has previously engaged in a criminal act and has a criminal record. This is why it is important that we seek to develop our law on spent convictions. I do not believe somebody who has rehabilitated himself or herself and has reformed his or her life should live permanently under the shadow of a criminal conviction he or she obtained when he or she was young and in circumstances from whence he or she has long since departed.

There is, however, a benefit to criminal records that arises at two stages, namely, when police authorities are investigating a crime and when it comes to a court imposing a sentence on a person who has been convicted of a crime. With the former, obviously if there is an ongoing investigation in another EU country of an Irish citizen, and that citizen suspected of a criminal offence, it would be of benefit to the police authorities in that European Union country to know whether the individual has a previous criminal conviction for a similar offence. It does not mean that because a person has a previous criminal conviction, he or she is responsible for the subsequent similar offence being investigated, but it is of benefit to a police authority and investigator to know that a person has previously committed a similar offence. When a case comes to trial, and certainly in Ireland, one would not be able to reveal to a jury or a court that a person had previously committed a criminal offence similar to the one with which he or she was being charged. That would be unfair and it would prejudice a jury and would affect the judge in the assessment of whether the person had committed the offence under investigation. Criminal records are of benefit when it comes to the sentencing. If the person has a string of previous convictions in another country, then it will be of benefit to the other EU country to know the person has other convictions. It indicates a propensity to commit these offences. This is taken into account when a court comes to sentence the person.

There is huge benefit in co-operation between member states around the exchange of information about criminal records. It serves a public purpose and Ireland should be involved in this. Also relevant is the issue of what is going to happen when Brexit arises. Unquestionably, when one looks at the statistics, one can see that the United Kingdom seeks a huge amount of information from other member states in respect of offences committed in the UK. The UK also provides a considerable amount of information to other member states on UK citizens or residents who have committed, or may have committed, offences in other EU member states.

Another issue of concern to us all in the context of Brexit is what will happen when the United Kingdom is no longer part of the ECRIS system. Concerns have been expressed as to the future position of the UK, particularly because, at present, only EU member states are permitted access to ECRIS. Even the non-EU Schengen countries are excluded. In 2018, the then UK Home Secretary, Sajid Javid, suggested that the UK should seek to continue its strong stance of co-operation with the EU in regard to matters relating to counter-terrorism and security. One wonders how he would get on if he stood up this evening in the House of Commons and suggested that the UK continue its strong stance of co-operation with the EU regarding certain matters. He would get a negative response, especially from members of the Tory Party. We need to recognise that there will be a gap, particularly if the UK leaves the EU on 31 October without a deal. We will have to prepare for that. It is another example of how this State and the United Kingdom will suffer as a result of a no-deal Brexit.

As stated, Fianna Fáil supports the legislation. It is important that we share information relating to criminal records with other members states. We also need to continue to update our legislation in respect of spent convictions and to recognise that people can be rehabilitated. Unfortunately, the statistics revealed yesterday by the Central Statistics Office show a very high rate of recidivism, particularly among young men. It appears that 50% of men in their 20s reoffend within three years of leaving prison. This is a significant problem. It shows that if young men become involved in crime at an early age, it is difficult to get them out of it before the age of 40. Research shows that once they reach 40 years of age, men stop committing crime. The recidivism rate drops considerably. Unfortunately, if a young boy of 14 or 15 years gets involved in minor criminal activity, it is difficult to get him off that pathway and the likelihood is that he will end up in prison. If he ends up in prison once, there is a significant chance he will return to prison. This should encourage us to do all we can to deter young men from getting involved in criminal activity at an early age. To achieve this, we need to ensure that there is greater educational attainment among these young men and we need to direct them down other avenues such as sport and vocations so that they feel a sense of worth and do not feel it necessary to get involved in crime.

Sinn Féin supports the Bill but the question that begs to be asked is why it has taken so long to come before the House. ECRIS has been in operation in Ireland since 2012, which means that there has been some level of failure in terms of the bringing forward this legislation. That is disappointing. However, as has been stated, the Garda Síochána has been operating this system without this legislation in place to underpin it. While this has not caused any difficulty up to now, it could potentially have done so. It points to a slipshod attitude in terms of allowing it to continue in that manner for so long.

Deputy O'Callaghan highlighted an issue in the context of Brexit that will need to be addressed. Currently, all EU member states are in ECRIS. In circumstances where the UK leaves the EU without a deal, the data passed to the British authorities since 2012, which is covered by EU data protection legislation, will no longer enjoy that protection in the British jurisdiction. This means that we have passed on data over which we have no control in terms of its use in the future. That issue needs to be addressed. We are all aware of the British Government's failure to negotiate in regard to a Brexit deal, which is really only about an interim arrangement. The full arrangement is not due to come into effect until a later date but we need to see that happen as quickly as possible.

I want raise a number of issues with regard to activities that are criminal offences in some states but not in others. For example, a person in this State can be convicted for possession of fireworks but in many other jurisdictions, this is not a criminal offence. There may be other examples. The Minister of State might enlighten us as to the arrangements in that regard. Do the records of people from outside the EU who become citizens in other member states and then come to Ireland follow them from their countries of origin?

There are also concerns in respect of the storing of data. The Bill sets out the requirement for competent storage of documentation to ensure its availability for sharing, if required. We are all conscious of the tribunal of inquiry documents lost over the last number of years. While only a small number of cases have been examined through that lens, it causes one to wonder if, perhaps, portions of files relating to more than 50% of the criminal justice cases in this country may be missing. I would like an assurance that our system is sufficiently robust to ensure that such documentation is properly retained and that there is full accountability in that respect.

The Garda Síochána will be the central authority for the exchange of records. We are all aware of the staffing shortages within an Garda Síochána. It is hoped that the civilianisation of the service will help to alleviate those difficulties. However, we would like an assurance that An Garda Síochána will have adequate staff to perform this task. The timescale relating to the delivery of information requested by another EU member state is 20 working days. I am informed by people who regularly seek access to information from various agencies of the State, including the criminal justice system, that if they took receipt of that information within 20 months, they would feel they had done well. The concern is that 20 working days is an ambitious deadline in light of previous experience in this area.

Another issue arises in the context of the infringement proceedings that are in place, In November 2018, the European Commission issued a formal notice to Ireland in this regard, which I assume brought urgency to putting this legislation in place. While we appreciate that, it is difficult to understand why it has taken so long for it to come before us. We need answers in that regard. I understand that the EU Commission has stated that if Ireland does not act within the next two months, it may send a reasoned opinion. The latter would put is in a difficult position. We should not be in that space.

In regard to how this matter is being addressed in other countries, the Netherlands has put in place a provision to ensure that data is passed between member states in the event of change of nationality of an offender. Where people change nationality when they come to Ireland or another EU member state, how will this be dealt with?

As already stated, the storage of information is our main concern. Is it proposed to have separate registers for storing convictions for the purposes of retransmission or will all information be stored on a central database? The bureau in Tipperary that deals with the vetting is one of the sources from which this information is currently taken. Will that be duplicated or will the bureau continue to store the information?

When citizens from all over the country apply to that agency for vetting, they find that getting answers can be a very lengthy process. A level of efficiency that was not there heretofore needs to be brought to bear on this. I reiterate that we will support it. This situation should be brought into play as quickly as possible.

The issue of spent records is one about which we must be careful. At different times in their lives, many citizens may engage in something that would generate a criminal record and this may not be something they should carry with them all of their lives. I am thinking in particular of people who are travelling. A recent case involved a young man from the Minister of State's county of Cork who got into a serious situation in the US because of something that happened in his youth. I am sure that most other European states believe we need to look at how we deal with that in an efficient and effective manner. Having said that, if a criminal incident happens and a person gets a record and moves to another country - in this State that conviction is considered a spent conviction - and re-offends in the other country, will it come back to us in a negative way? We must think that through and be careful. The issue of spent convictions needs to be dealt with and clearly thought through in respect of this legislation.

The general thrust of what is being done here is admirable and needs to be brought forward as quickly as possible. Both Ireland and other European states need to be conscious that there is a serious issue regarding the protection of people's data with regard to the exchange of information so that it is not open to hackers and cannot be accessed by people outside the very tight confines of the criminal justice system here or in other European states.

I thank Deputies O'Callaghan and Martin Kenny for their involvement in the debate on this very important matter and for raising questions. I may not have all the answers to questions raised by Deputy Martin Kenny this evening. I thank him for all the work he has done on this and the consideration he has given it. I will ask for the questions he raised to be considered seriously and will get responses to him before the next Stage because they are important. The issue of delay was mentioned. Transposition was delayed because of domestic legislation, which was a greater priority in the intervening years since the Government approved the drafting of the Bill on 7 April 2012. A lot of legislation that had priority has been dealt with since then. Regard must also be taken of the new European Commission's proposals in the form of a directive of 2016 and a regulation of 2019 that were designed to adapt the ECRIS system so that it could be extended to facilitate the exchange of criminal record information relating to third country nationals. This Bill does not transpose those instruments but we need to be mindful of their progress. The Deputy is right that we need to move this on quickly and get it done. Deputy O'Callaghan mentioned the EU justice issue, which is not really part of this. I remind the House that we are putting together a new EU justice strategy and are very mindful of the issues raised by the CSO on that matter.

I affirm that the Government is committed to transposing the two relevant European instruments that give effect to ECRIS in the form of this Criminal Records (Exchange of Information) Bill 2019, which I have introduced to the House today. The importance and value of ECRIS cannot be overstated. Ireland continues to agree with the principle of expanding ECRIS to improve the exchange of information regarding those persons with criminal convictions. The exchange of criminal record information between Ireland and other EU member states, which this system facilitates, is vital for enforcement authorities to more effectively do their job and stop criminals evading the law throughout the EU and beyond. I know that many Members of the House may be considering the implications of Brexit, which was mentioned by Deputy Martin Kenny, in respect of how criminal record information may be shared under this system with our neighbours in the UK. Of course, it would be preferable if the UK was to remain connected to the ECRIS system but that is a matter for the UK authorities and its Government to discuss in the course of its deliberations with the Commission on the nature of its exit from the EU. It is a matter for Her Majesty's Government and it would not be appropriate for me to speculate in this regard, but we are acutely aware of the value and importance of a co-operative relationship with the UK authorities in the sharing of this type of information and efforts continue to focus on ensuring that a mutually-beneficial relationship continues in that respect.

This Bill essentially provides for the transposition of European instruments that give effect to a system designed to provide competent authorities from one European Union member state with access to information from the criminal records of individuals from another member state. Its stated purpose is to facilitate the exchange of information from criminal records so that individuals' previous convictions can be taken into account if they become involved in new criminal proceedings. Ultimately, our objective is the same as that of all other member states in providing for this system, namely, to assist our agencies to enforce the law, to minimise crime and to combat terrorism.

The Oireachtas Joint Committee on Justice and Equality agreed that pre-legislative scrutiny on this Bill was not required. I re-state that I am hopeful that this Bill can quickly progress through the Dáil. This Bill is based on two technically complex and detailed European instruments. It has been subject to thorough and comprehensive legal scrutiny both in my Department and the Office of the Attorney General in the past two years. It has also been subject to several rounds of consultation, particularly in conjunction with our national central authority that will operate the ECRIS system, namely, the national vetting bureau of An Garda Síochána. I am pleased that we arrived at a point where the Bill received Government approval and was published on 31 July. Given that our non-transposition of the relevant Council framework decision is currently subject to infringement proceedings, I am confident that the steps we have recently taken and the passage of this Bill through the Houses will address any outstanding concerns of the

Commission in this regard and I again commend this Bill to the House. I will get the answers to some of the very technical questions asked by Deputy Martin Kenny.

Question put and agreed to.