7 June 2011
Let me say at the outset that the Government will not be opposing this Bill at Second Stage. I say this for the very obvious reason that in opposition both the Government Parties supported this very same Bill at Second Stage in December 2008. We support the principle of the Bill and for that reason, it would be irrational for us to oppose it here tonight. That being said, the Bill as published contains a number of short comings and omissions, some of which were noted in this House including by then Minister Andrews, when the Bill was debated in 2008. Since assuming office, I have been working on rectifying these problems and I intend to publish a new improved Criminal Justice (Spent Convictions) Bill 2011 shortly.
The Bill before us tonight started life as part of the Law Reform Commission’s Report on Spent Convictions in 2007. Deputy Calleary’s former colleague, Barry Andrews published it as a Private Members Bill in 2007 before being adopted as a Government Bill that passed Second Stage in this House in 2008. It lapsed with the dissolution of the last Dáil in February this year. The 2007 Bill has been the subject of considerable debate and the considered contributions of a number of parties, including the Irish Human Rights Commission and the Irish Penal Reform Trust will be reflected in the Bill that I will introduce. Indeed Minister Andrews in the second stage debate in 2008 acknowledged the several short comings in the Bill and the need to amend it in several respects. I am surprised that these contributions have been ignored in the Bill before us tonight, which is identical to the Bill published by former Minister Barry Andrews.
The failure to legislate on this issue has undoubtedly placed obstacles in the way of many ex-offenders who mended their ways and have been, or perceived themselves to be, prevented from accessing employment. I have been struck since taking office at the number of people who have written urging me to progress this legislation. These are people who were convicted of relatively minor offences many years ago and have had no contact with the criminal justice system since then. Some have moved on to good careers, but nevertheless feel that their convictions are hanging over them like a Sword of Damocles. Others fear that if they try to move job, their past will come against them. These are not hardened criminals. In many cases, they are people who for whatever reason, at a particular time in their lives, were convicted of relatively minor offences. They should not have to carry that burden with them for the rest of their days.
We are almost unique among European countries in having no provisions in our law in this area, where adults are concerned. Having said that, given where we are now, the priority must be to enact legislation in this area and to make sure that we get it right.
What does getting it right mean in this context? All of us are agreed that certain principles should underpin this legislation. These can be summarised as follows:
1. that a person should, after a reasonable period of time, be able to move on and not have to declare the fact of a previous conviction for relatively minor offences, particularly when applying for a job;
2. that certain offences, such as sex offences, must always be disclosed, regardless as to the length of sentence imposed or the subsequent conviction-free period; and
3. that certain sensitive employments, including those involving children and other vulnerable people; the administration of justice; and the security of the State should be excluded from the ambit of the legislation.
The first principle goes to the heart of the rationale for legislating in this area. I firmly believe that we must have a criminal justice system that prevents crime, detects crime, prosecutes offences and imposes penalties in the form of fines, imprisonment or community service and provides mechanisms for other appropriate means of dealing with offenders. However, I equally believe that when a person pays their debt to society, it should not, in every case, follow them around for the rest of their lives. Rehabilitation into and participation in normal society must be an objective of our penal system and a spent convictions regime has a role to play in this. Of course, any such regime must balance the rehabilitative potential of such a regime with the interests of society in general. Insofar as the absence of a spent convictions regime militates against former offenders securing employment, it may increase the risk that they drift back into criminality.
Society can only benefit if offenders, having paid their debt to society, are reintegrated into their communities and don’t re-offend. To the extent that a job assists in this, we should not put unnecessary obstacles in the way of offenders who disavow criminality and seek employment. However, this legitimate aspiration must be balanced against other societal concerns. Serious offences, particularly sexual offences or offences that attract long sentences cannot be embraced by legislation designed to smooth the pathway to employment for offenders. No employer should be expected to operate in the dark and risk the reputation of their businesses, as a result of the introduction of legislation of this kind. Neither can it put at risk vulnerable persons. The Bill before us, as will the Government’s Bill, recognises that vulnerable persons cannot be put at risk and that extra safeguards are required where people with a criminal past wish to work directly or indirectly with vulnerable persons. This, of course, includes working directly or indirectly with children.
Equally the State has a direct interest as a major employer in this issue. From my Department and the various Agencies involved in the administration of justice, to the Health Service Executive with its responsibility for children and other vulnerable persons, the State clearly has a major responsibility to ensure that those it employs in sensitive areas are suitable in every respect. This brings me to the parallel but connected issue of vetting. The public should be assured that the proposals in relation to spent convictions do not cut across, in any way, the legitimate requirement that those who wish to work for the State in sensitive roles or for the providers of care to young or other vulnerable persons will still be subject to vetting. I intend that the Government Bill will explicitly provide that An Garda Síochána may disclose spent convictions where information is requested by an employer in respect of any excluded employment.
This Bill does not provide for a "wiping of the slate" or the expunging of offences. The offences will remain on the record. Instead those who benefit from its provisions will not have to disclose the fact of a conviction. I believe that this strikes a fair balance that addresses the competing interests of the offender and of society.
As well as employing people, the State issues licences to people. These licences are valuable and permit people to carry on certain activities and businesses. Deputy Calleary’s Bill makes no provision in relation to the granting of licences. This is a significant oversight that I intend to remedy in my Bill. For example, it is my view that those applying for licences to operate taxis or to enter the private security business should have to disclose any past convictions. These self-disclosures are an integral part of the system, providing a first layer of accountability, backed up by Garda clearance, as required.
I would now like to turn to the other principles that I listed earlier. Again, while we are broadly in agreement, there are a number of aspects of the Bill which I consider deficient. The Bill, at 6 Sections, has the quality of brevity but lacks the level of specificity that such legislation requires. In essence, the approach in the Bill, is to exclude certain categories of sentences – "excluded sentences" and by default to include everything else. While I can agree that sentences imposed for sexual offences and those imposed in respect of offences reserved for trial by the Central Criminal Court should be excluded, and while I also tend towards the exclusion of prison sentences greater than 6 months, I am still considering whether the threshold should be extended further as recommended by the Human Rights Commission. In the same way, we need to make provision for suspended sentences, no mention of which is made in this Bill.
Having dealt briefly with the question of the sentences and other penalties to be covered by the legislation, there then arises the question of how long a person needs to be "conviction-free" before they can avail of the reliefs in the Bill. This Bill proposes a two-tier approach with custodial sentences of six months or less attracting a 7 year rehabilitation period, and non-custodial sentences attracting a 5 year period. When the Bill was last debated in this chamber, all sides were agreed that these periods needed to be looked at again, if the incentives in the Bill were to have any useful application. It is my view that the more nuanced approach that I will be proposing in relation to the range of sentences to which the Bill will apply should be mirrored in the rehabilitation periods that will have to be "served". While I have not reached a definitive view on the matter yet, I am minded to have shorter rehabilitation periods for the range of sentences mentioned earlier. No doubt there will be many different views on this issue: my own view, which reflects that of the Human Rights Commission, is that a minimum 5 years rehabilitation period is too long.
For the avoidance of doubt, I want to reiterate that people convicted of sexual offences will not benefit from the provisions of this Bill, regardless as to the nature of their offence, the sentence they received, or the length of time since their conviction. There will be no change in this regard, nor can there be, and the Government’s Bill will make this abundantly clear, without equivocation.
This Bill is fundamentally about people with convictions accessing employment. I pointed out earlier, that of necessity, certain employments must be excluded from the provisions of the Bill, and that people seeking employment in those areas will continue to be required to disclose past convictions. In the Bill, these are called "excluded employments". The view was expressed when this Bill was debated in the House in 2008 and by the Human Rights Commission, that the list was excessive and I think we need to reflect further on this issue. The formulation in this Bill would exclude most, if not all, of the civil and public service. There are obviously areas of the public service that must by their nature be excluded. However, I want to see a provision that is flexible enough to exclude those civil and public service employments that warrant exclusion, but avoiding a blanket exclusion. I say this because I am not sure that it is reasonable to say to a private sector employer that the State is in favour of a spent convictions regime where he or she is concerned, but that there is no job in the civil or public service to which it should apply. Of course, as I mentioned earlier, any prospective employee seeking employment that could bring them into contact directly or indirectly with children or vulnerable adults, will still need to disclose their convictions. Finally, on this issue of excluded employments requiring disclosure, I want to say that this should not mean that somebody convicted of an offence, that would otherwise be spent should be debarred from that employment. Reasonable employers should consider if the conviction is relevant to the job on offer and where it is not, should not allow it to influence their decision. Prospective employers have a key role to play in the rehabilitation of offenders, including their integration into the workforce.
Finally, Deputy Calleary’s Bill makes no mention of the number of convictions that can be "spent". I believe that the limit should be two. This legislation cannot be to the benefit of the repeat offender with multiple convictions. This is not a charter for re-offending.
This Bill is different than most other criminal law proposals directed at detection and prosecution of crime. It is coming at the criminal justice system from the other end – after the process has been completed, people have served their sentences, and in most cases want to get on with their lives. It is for that reason that the Government is not opposing the Bill tonight. Having said that, it is one thing to agree on the objectives of the Bill and the broad principles underpinning it, it is another to turn them into a legislative proposal that is clear, unambiguous and that achieves its objectives. The Spent Convictions Bill 2011, is what its predecessor Bill was – a good start. It is not however a Bill that could be put on the statute book without such significant amendment as to render it unrecognisable. It is for that reason that the Government will be publishing its own Criminal Justice (Spent Convictions) Bill, as soon as a small number of outstanding issues have been resolved. I am sure that I will be able to rely on the co-operation of Members opposite at that time with the early enactment of what will be a very important piece of legislation.