Alan Shatter (Dublin South, Fine Gael)

The Government will not oppose this Bill on Second Stage. I say this for the obvious reason that in Opposition, the Government parties supported the principle of this Bill on Second Stage in December 2008. We support the principle of the Bill now also and therefore, in those circumstances, it would be completely inappropriate to oppose it. In addition, I want to encourage Opposition Deputies to publish legislation during the lifetime of this Dáil. As Minister for Justice and Equality, I intend to deal with them entirely differently to the manner in which such legislation was dealt with during the 14 years when Fianna Fáil was in Government. In particular, during the past seven years that party was in Government it automatically opposed every Private Members' Bill ever published by the Opposition and refused to engage in any constructive discussions of such measures.

That said, the Bill as published contains several shortcomings and omissions. It is curious that this Bill, which was originally published as a Private Members' Bill by the former Minister of State and Deputy, Barry Andrews, in 2007 - and was debated in 2008 - seemed to grind to a halt. In December 2008, the then Minister of State, former Deputy Barry Andrews, stated that it would be necessary to amend the Bill in several respects. In the course of that debate, he said he had already identified several matters requiring amendment. He went on to tell us that it might take a little while to finalise the Bill. That was in December 2008, but it is curious that 2009 and 2010 passed, yet the Bill was not seen again.

There are substantial difficulties with this Bill. Since taking office, I have been working on rectifying these problems because this measure should be enacted. I intend shortly to publish a new, improved criminal justice (spent convictions) Bill 2011. It will address issues the Bill before us has not addressed. I do not want to be difficult about this and I want to encourage Deputy Calleary and others to produce Bills. When they do so on issues the Government has not had an opportunity to address, and where an issue deserves to be dealt with, I will have no hesitation in taking on board such a Bill. I will take it to Committee Stage, if it is appropriate to do so. In the context of this Bill, however, it might have been better if Deputy Calleary had considered the development since 2007 when it was first published and had incorporated within the measure some of the many amendments required.

The Bill before us started life as part of the Law Reform Commission's "Report on Spent Convictions" in 2007. It was published as a Private Members' Bill in 2007 by the former Minister of State and Deputy, Barry Andrews, before being adopted as a Government Bill. 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. Their contributions will ultimately be reflected in the Bill I intend to publish. As I have also said, former Deputy Barry Andrews acknowledged the Bill's shortcomings in 2008.

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. Since taking office, I have been struck by 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 play 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, be able to move on and not have to declare the fact of a previous conviction for relatively minor offences, particularly when applying for employment;

2. that certain offences, such as sex offences, must always be disclosed, regardless of the length of sentence imposed or the subsequent conviction-free period; and

3. that certain sensitive employment - 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. We must have a criminal justice system that prevents crime, detects crime, prosecutes offences, imposes penalties in the form of fines, imprisonment or community service, and provides mechanisms for other appropriate means of dealing with offenders. However, when a person pays his or her 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. Any such regime must balance the rehabilitative potential of such a regime with the interests of society in general. In so far 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 do not 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 his or her businesses, as a result of the introduction of legislation of this kind. Neither can it put vulnerable persons at risk.

The Bill before us recognises, as will the Government's Bill, 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, be they adults or children. This includes working directly or indirectly with such persons.

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, which some Deputies have mentioned. The public should be assured that the proposals on spent convictions do not cut across 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 regard to the granting of licences. This is a significant oversight that I intend to remedy in the Bill which will be published later this year. 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 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, which contains six 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" as they are termed, 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 six 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 what is termed "conviction-free" before he or she 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 seven-year rehabilitation period, and non-custodial sentences attracting a five-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. The Human Rights Commission also made this point.

The more nuanced approach that I will be proposing in regard 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 five 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 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.

The 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 in view of this I believe 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 while 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 of any nature in the civil or public service to which he or she should apply. This is completely illogical. It is relatively simple and easy to identify jobs in the public service to which a spent convictions Bill can quite properly apply. As I mentioned, any prospective employee seeking employment that could bring him or her into contact directly or indirectly with children or vulnerable adults will still need to disclose his or her convictions.

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 they 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. A number of employers have played such a role in the past.

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 and cannot be a charter for re-offending. However, a particular issue may arise in regard to persons who, as young people, had a multiple series of convictions and who now in their adult years are clearly free of the criminal justice system and are responsible members of the community. This is an area to be factored into consideration. Within our children's law provisions, there are already provisions addressing issues relating to young people who offended during their minority. The example given by Deputy Browne particularly calls to mind the type of difficulty a young person with a conviction, perhaps incurred during his or her teenage years, may experience some ten or 15 years later unexpectedly in circumstances in which he or she is clearly a law-abiding citizen of this State and in which he or she should not be in any way impaired in travelling to the United States or elsewhere. There are a range of issues relevant to the consideration that needs to be factored into this measure and I hope these are all issues that will be adequately and comprehensively addressed in the new Bill that will be published.

This Bill is different to most other criminal law proposals directed at detection and prosecution of crime. It is approaching 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 the Government is not opposing the Bill. I reiterate we accept the principle of the Bill. Having said that, it is one thing to agree on the objectives of the Bill and its principles, but 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 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 I will be able to rely on the co-operation of Members opposite at that time with the early enactment of what will be very important legislation.

In the context of issues raised in respect of vetting by two contributors, I was concerned, when on the other side of the House, at the delays that were being experienced in that respect. The vetting bureau in Thurles, which I visited some time ago, does an extraordinary job with great efficiency and by a flexitime system that ensures the maximum possible number of vetting applications are dealt with.

However, with the large number of organisations and employers which now use that facility, it is clear that it was seriously understaffed for a long period. Ten additional employees have been recruited to the vetting agency and I hope in the not too distant future to make an announcement with regard to additional assistance that will be made available to it. It is my objective to get to a point in this respect but it will take a little time before this occurs. I say that to Deputy Calleary who no doubt with great enthusiasm will table a Dáil question on this matter in a few weeks. It is my objective to get to a point where all vetting applications, except where there are exceptional circumstances, are dealt with within a period of three to four weeks and that we can fast-track applications where there is an immediate job available to an individual to facilitate him or her being dealt with more quickly where it is appropriate but it will take some months to bring about that position. It is regrettable that the previous Government did not provide the vetting bureau with the resources it requires.

Deputy Dooley referred to the delay in progressing this Bill as being a criticism of both sides of the House.

I do not want to be partisan, but taking such a comment seriously is difficult when Deputy Dooley's party was in government in 2007 when the then Deputy Barry Andrews published the legislation as a Private Members' Bill and when the same Deputy dealt with that Bill on Second Stage in December 2008 as a Minister of State at the Department of Justice, Equality and Law Reform. He obviously did not give his own Bill sufficient priority as a Minister of State to get it through the House. If there is any blame for the Bill's lack of progress through the House, it attaches to my predecessors.

I appreciate Deputy Calleary's good intentions in publishing the Bill and I support the principle of the Bill. I must look somewhat askance at Deputy Dooley's suggestion that, were more Oireachtas committees appointed by the Government, the Bill would travel more quickly. I am open to correction, but the total number of committees to be appointed by the Government is 13. My recollection is that, under the auspices of the last Government, there were 24 committees. Clearly, they did not add any great speed or haste to the enactment of this particular measure. I do not quite know how many additional committees Deputy Dooley believes we need, but it was a somewhat facile argument. That said, I appreciate Deputy Calleary's good intentions in tabling the measure and look forward to co-operating with him in our processing, hopefully with some speed, of the new Bill to be published in the not too distant future.

See this speech in context