Tom Fleming (Kerry South, Independent) | Oireachtas source

The Irish Human Rights Commission has produced a considered and reasoned analysis of the Bill. I am glad that the Minister for Justice and Equality, Deputy Alan Shatter, has taken cognisance of many of its observations and proposals, a number of which have been included in the legislation, as drafted. The Bill has the capacity to deter criminality, detect crime when it is committed, prosecute offenders and ensure court decisions are served. Crucially, it recognises that when a person has paid his or her debt to society, it is in the best interests of society and the offender for him or her to be rehabilitated and reintegrated with all speed. The Bill will enhance the ability of people to secure and retain employment after leaving prison.

The explanatory memorandum states the main purpose of the Bill is to assist the rehabilitation of offenders who often experience difficulties in securing employment as a result of having a conviction. Its primary aim is to remove the employment discrimination that affects people who have convictions. The highest level of protection must apply when those who have committed serious offences seek employment that involves contact with children or direct contact with vulnerable persons. The stated purpose of this legislative approach - to remove employment barriers from people with previous convictions - does not appear to be met by the Bill. I suggest this measure should be accompanied by a corresponding strengthening of equality legislation.

It is important for people who have been convicted of minor offences to be able to obtain employment, thereby aiding their rehabilitation and reducing their risk of reoffending. Those who have come into contact with the justice system face serious challenges in obtaining employment. Discrimination on the basis of previous convictions is a real issue that has a serious impact on former offenders. According to a survey conducted by the National Economic and Social Forum in 2002, just 52% of employers would consider employing ex-offenders. A report drawn up by the Law Society of Ireland on a proposed rehabilitation of offenders Bill quoted research carried out by the Small Firms Association in 2007 which indicated that an average of 76% of companies were unwilling to hire ex-offenders.

Once a criminal conviction is imposed, it follows the individual for life and may inhibit his or her access to education or employment and his or her ability to obtain licences, insurance and housing. It may also restrict his or her ability to travel. The grounds of discrimination in the Employment Equality Act 1998 should be extended to include discrimination on the basis of a criminal conviction. This should be accompanied by a restructuring of the vetting system, as recommended by the Data Protection Commissioner. A system to expunge previous convictions after a fixed period of time should be seriously considered.

I question the provision requiring that a conviction cannot be considered spent outside the jurisdiction of the State. If a conviction is regarded as spent under Irish law, it is unclear why a person would not be entitled to have it considered spent outside the jurisdiction. The impact of a criminal conviction on a person's ability to travel to certain countries is well recognised. If this provision were removed, the authorities in another state would still be in a position to seek information from individuals on whether they had been convicted at any time in another jurisdiction. However, Irish law should prevail. For the purposes of Irish law, the individual's conviction for a minor offence will be expunged from the public record. The legislation should explicitly refer to convictions obtained outside the State as being included for the purposes of the legislation. It is particularly important that an offender can obtain employment and access education as soon as possible after completion of his or her sentence. This is particularly important in promoting reintegration, accelerating rehabilitation and mitigating the risk of reoffending.

Under the Bill, a conviction will be considered spent after a period of seven years following a custodial sentence of nine to 12 months and after a period of five years following a custodial sentence of six months or less on condition that the person concerned had had no further sentences imposed on him or her during the relevant rehabilitation period. The Bill also provides for a period of three or four years in relation to a fine or a community service order and three years in the case of a non-custodial sentence. The proposed rehabilitation periods are too long and inconsistent with the Council of Europe's recommendation that member states provide for an automatic period of rehabilitation after a "reasonably short period of time". A shorter rehabilitation period would maximise the possibility of rehabilitation and reintegration into society. In the case of a conviction that results in a fine, it is far from clear why an extended period of rehabilitation would need to apply. I refer to cases in which the State considers the offence to be at the most minor end of the scale such as a failure to possess a television license or non-payment of the household charge.

It could be argued that the proposed periods of rehabilitation are disproportionate to the legitimate aims of public safety and preventing disorder or crime. The case of Cox v. Ireland is relevant when we consider the length of the rehabilitation period. The court held that a blanket exclusion from Civil Service employment for a seven year period of all people convicted of membership of an illegal organisation was too wide and indiscriminate. While the Bill does not expressly exclude a convicted person from accessing any form of employment, the requirement to disclose a criminal record for up to seven years following the conviction may greatly reduce the convicted person's chances of securing employment.

The Law Society of Ireland's report on the rehabilitation Bill proposed recommended that the relevant period for non-custodial sentences be the duration of the sentence plus one year and in the case of sentences of less than two years it should be the duration of the sentence plus two years. In order to adhere to the principle of proportionality and maximise the possibility of rehabilitation of convicted persons, the proposed legislation should provide for shorter periods of rehabilitation that are proportionate to the sentence imposed. The recent changes to the relevant legislation in the United Kingdom could be instructive in this regard.

Measures taken to seek the rehabilitation and reintegration of convicted persons must be balanced against the broader societal interests of public safety, the prevention of disorder and crime and the need to have due regard for victims. There are sufficient safeguards in the Bill to justify an increased sentencing threshold, including a period of rehabilitation prior to the possibility of non-disclosure; a requirement to disclose in all circumstances if the person seeks a position in certain categories of employment, including employment involving the care, supervision or teaching of vulnerable persons, including children; and a requirement to disclose in criminal proceedings and other identified procedures such as those relating to adoption or fostering. It has been established in the Supreme Court and the European Court of Human Rights that in certain circumstances the State may legitimately exclude offenders from specified areas of employment. However, any measure taken must have regard to the constitutional rights of the citizen and be proportionate to the legitimate objectives pursued. The State is required to treat differently people whose situations are significantly different.

A number of items that need to be addressed in legislation are not included in the Bill, as it stands. It has come to my attention that many motor insurance companies are not prepared to insure drink-driving offenders, even those who exceeded the legal limit by a minimal amount. We need to address in the Bill the manner in which such offences are held against people when they try to obtain insurance. A similar provision seems to be written in the small print of house insurance policies. It comes to light if it transpires that a member of the household was convicted in the courts at some stage.

If the house is burgled or there is another harmful effect, it appears there is a condition written in the very small print which excludes insurer liability or payment by the insurance company. We need to ensure close scrutiny of these very important matters which will affect many households.

See this speech in context