Seanad debates

Tuesday, 17 December 2019

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

 

Question proposed: "That the Bill be now read a Second Time."

1:30 pm

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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I welcome the Minister for Justice and Equality, Deputy Flanagan, to the House and call him to make his contribution.

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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I am pleased to present the Bill to the House, the purpose of which is to provide for the exchange of criminal record information between Ireland and other EU member states.

The Bill will transpose two EU instruments, namely, Framework Decision 2009/315/JHA on the organisation and content of the exchange of information extracted from the criminal record between member states, and its implementing Council Decision 2009/316/JHA on the establishment of the European criminal records information system, ECRIS, in application of Article 11 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. Having regard to the free movement across borders, there is very significant benefit to have a system allowing the reliable exchange of criminal records information between member states.

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 between competent member state central authorities of information extracted from criminal records is important if we are to avoid individuals escaping justice.

The need resulted in the agreement at EU level of these two EU instruments to establish ECRIS. The 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 information is necessary. It also creates a specific obligation on each member state to inform those other member states when their citizens are convicted of criminal offences.

Currently, the National Vetting Bureau, which exchanges information, carries out four main tasks within this framework. They are, first, the submission of requests to central authorities in other member states for extracts from their national criminal record in respect of nationals of the member state concerned. Second, the bureau responds to requests from the central authorities in other member states for extracts from Ireland's criminal records database in respect of Irish nationals. Third, the bureau receives, stores and updates where necessary Ireland's criminal records database with appropriate information received from central authorities in other member states in respect of Irish nationals convicted in those other member states. Fourth, our central authority 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 the member state of the convicted person.

Ireland's Data Protection Act 2018 has given effect to the general data protection regulation, GDPR, and transposed the law enforcement directive.The material impact of this new data protection regime on our careful transposition of the ECRIS framework decision and Council decision has been considerable. This Bill has been subject to extensive and detailed consultation with the Office of the Attorney General and the European Commission over the past 12 to 18 months.

Turning to the specifics of the Bill, 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 Garda Commissioner is the designated central authority. Section 3 provides for the recording, when available, of the nationality or nationalities of EU nationals who are convicted of an offence. 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. Section 5 provides for the storage of information. 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. Section 7 provides for the responses to requests from other central authorities and related categories of information that can be transmitted in respect of a person who is a national of the State. Section 8 provides for the responses to requests from other central authorities and the related categories of information that can be transmitted to other central authorities in respect of a person who is not a national of the State. Section 9 deals with the deadlines to respond to requests for information. Section 10 provides for the electronic transfer of information. Section 11 provides for safeguards on how and when personal data is received, transmitted and can be used. 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 limitations outlined in section 7. Section 13 provides that the Bill does not affect any obligation or power to provide or request information under any other law. Sections 14 and 15 are standard. Schedule 1 includes the full text of the relevant framework decision. Schedule 2 lists the information that can be provided on request. Schedule 3 lists 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.

Members may be aware that Ireland is required to inform the Commission of the measures we have taken to facilitate transposition. I am confident that I will have the support of the House in this regard. The Bill is not only a priority due to the position the Commission has now taken but because its future development is part of a package of measures to enhance law enforcement and judicial co-operation across the EU. Accordingly, I am pleased to present and commend this Bill to the House. I very much hope we can progress matters this afternoon towards enactment.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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Before I call on Senator Clifford-Lee, I welcome Sean McMahon, a senior journalist with The Anglo-Celtin Cavan town, to the Public Gallery. He is accompanied by his niece Áine. They are guests of Councillor John McGahon from Louth so that is some geographic spread. Mr. McMahon is very welcome. I hope he enjoys his visit to Leinster House.

Photo of Lorraine Clifford LeeLorraine Clifford Lee (Fianna Fail)
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I welcome the Minister to the House. Fianna Fáil will be supporting this very important legislation. However, it is baffling that it took ten years to bring it to the House following the European Commission decision. It took a formal letter last November before the Government acted. Could the Minister explain to the House the reason for the delay? It is quite clear that up-to-date criminal records of citizens of member states are urgently required. I have a concern about the situation post-Brexit because only EU member states can access this database. When the UK is no longer a member, it will send requests to the Irish Government. What mechanisms are in place to deal with that?

Photo of Pádraig MacLochlainnPádraig MacLochlainn (Sinn Fein)
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Sinn Féin supports this Bill but we have a number of concerns, which I would like to raise. Why has it taken seven years for this issue to reach the Dáil and Seanad to be legislated for? An Garda Síochána has been operating the exchange of information on criminals with other police forces since 2012. Obviously, this activity was being carried out with the best of intentions but it did not have a legal basis. This is highly irregular. Why did this legal gap continue for so long? There are a number of questions, which the Minister can deal with at the end. A review should be carried out to provide answers regarding this legal loophole. We need answers to the obvious questions arising from the delay. It is not just the Seanad and the Dáil that need answers. The European Commission issued this State with a formal notice to resolve this anomaly or explain to it why we are in this legal limbo.We should not be in this space.

All EU member states are part of the criminal information exchange programme and now that Britain is leaving the EU, questions arise about the protection of the information that the British police has received from An Garda Síochána over the past seven years. At present, this information is protected by EU data protection legislation but once Britain leaves the EU, this information is not protected. What arrangements are being put in place to ensure this information is protected?

I would also like to know whether criminal records travel with them from state to state as they pass through the EU. There may be examples where crimes in one state are not crimes in another. What of non-EU nationals? Do their criminal records follow them when they become citizens of another EU state? The Netherlands has put in place a provision to ensure that data are passed between member states in the event of change of nationality of an offender. When people change nationality when they arrive here or in another EU state, how will this be dealt with?

The Bill sets out the need for the competent storing of documentation to ensure it is available for sharing if required. The storing of data can be an onerous task and we saw that when documents relevant to the tribunal of inquiry were lost. Is it proposed to have separate registers for storing convictions or will all information be stored in a central database? Will the bureau in Tipperary that deals with vetting continue to store that information or will it be duplicated?

It is important that the public has confidence in the system designed to protect data and that it is clearly capable of being protected and that robust accountability measures are in place should the system break down. The Garda Síochána is the central authority for the exchange of records and yet it is facing staff shortages. Will the Garda have adequate staff to perform this task?

Twenty working days is the timescale for the delivery of information requested by respective police services. Is this a realistic timescale? I am informed by people who regularly seek access to information from various agencies of the State, including the criminal justice system, that such a request is more likely to be delivered in 20 months. The concern is that 20 days is an unrealistic timeframe.

The issue of spent records is one about which we need to 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 has been done here is admirable and needs to be brought forward as quickly as possible. All EU states, including this one, need to be conscious that there is a serious issue regarding the protection of people's data with regard to exchange of information so that it is not open to hackers and cannot be accessed by people outside the tight confines of the criminal justice system here or in other EU states.

I await the Minister's response to those concerns but, as I stated, my party will be supporting the passage of this legislation.

Photo of Martin ConwayMartin Conway (Fine Gael)
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I welcome the Minister to the House. I acknowledge the support of the two Opposition parties, as indicated by Senators Clifford-Lee and Mac Lochlainn, for this important legislation.

I am on the joint parliamentary scrutiny group on Europol. It is an extremely important developing role because crime is borderless and the best way of giving a society some chance of dealing with the scourge of crime that transcends all borders is by working together and having a seamless sharing of information. We see it in the Acting Chairman, Senator Wilson's part of the country with the developing protocols with the PSNI. That type of structure and protocols needs to be extended worldwide.

I would agree that it is a pity that this legislation is only becoming before us now. That said, better late than not at all.It will help in the resolution of crime, not just in this country but in our neighbours as well. Brexit is an important consideration. The British authorities have made it clear that when it comes to security and sharing of information, they are at one. At the latest meeting in Brussels of the joint parliamentary scrutiny group of Europol, the Commissioner for home affairs, Julian King, a former British ambassador to Ireland, spoke at length about how his country is committed, post Brexit, to putting whatever suite of measures is necessary in place to deal with the scourge of crime, especially the new developing online crime. I believe that will happen and it is very welcome. It is good that this Bill is passing all Stages today. It will hopefully leave the Seanad with a unanimous seal of approval.

Photo of Ivana BacikIvana Bacik (Independent)
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I welcome the Minister. On behalf of the Labour Senators, I support this important Bill, which will put into effect the EU-required framework decision on the organisation, content and exchange of information and Council Decision 2009/316/JHA. If one considers the parliamentary history of this Bill, it should have been before us much sooner. The Minister and others have raised the issue of delay. The Commission issued Ireland with a reasoned opinion in July on account of the delay in notifying measures for the transposal into our national law of this framework decision. The Minister said the transposition was delayed due to domestic legislation which was a greater priority at the time, but that can always be said.

I looked at the legislative history of this Bill and given that we have all welcomed it, with, I believe, no opposition or voices against it here or in the Dáil, since it is an important Bill that will enable the exchange of information on criminal records between EU member states, it is extraordinary that it is coming to us to be taken through all Stages in the Seanad on our second last sitting day this session. It received Government approval on 31 July; the Joint Committee on Justice and Equality decided that there would be no need for pre-legislative scrutiny because it was largely technical and it did not have any difficulty with its provisions; and it was on Second Stage in the Dáil on 25 September, at which point general support was expressed for it. It seems odd to me that it is only now, on 17 December, coming to us to pass all Stages in the Seanad. Unfortunately there has been a pattern over many years, though not particularly under the Minister's watch, of Department of Justice and Equality legislation being rushed through in the final sitting week of December and July. It is a pity to see that happen here too.

Senator Ruane has tabled amendments that she will raise. The issue of spent convictions and their relationship with this legislation was raised in the Dáil. I am glad that her amendments will give us an opportunity to debate that issue again.

Finally, as others said, Brexit has clear implications for the substance of this Bill. We all have concerns about how the British Government's stated intention to leave by 31 January will impact on exchange of records, especially with regard to the UK's connection to ECRIS. We all have that concern and I do not imagine that, at this stage, anyone in the Government can answer the question on that. It is a matter for the British Government. It needs to be said and it underlines the importance of legislation such as this and of EU instruments because they are designed to facilitate a more streamlined criminal justice process on a transnational basis across member states. I support this Bill but, like others, I raise the question as to why it has taken so long to come to this House, why there was such a delay in bringing it into the parliamentary process in the first place and, once it came into the Dáil in September, why it took so long to come to us in the Seanad and it needs to be taken on all Stages on the second last sitting day.

Photo of Charles FlanaganCharles Flanagan (Laois, Fine Gael)
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I acknowledge the support of Senators. A number of questions have been raised. As I previously stated, the importance and value of ECRIS cannot be overstated. Our objective is the same as that of other member states and I am pleased there is all-party agreement on the content of the Bill and among Independent Senators as well.

A number of questions were raised by Senators Mac Lochlainn and Bacik. ECRIS has been operational since 2012. It is operated by the Garda on an administrative basis but that does not in any way affect its legality or otherwise. We are anxious to ensure by the passing of the legislation that it will be underpinned by statutory force, which will set out the requirements of the framework decision. Once the system became active, it was important that our central authority, once connected to the system, was in a position to execute the exchange of information with the central authorities in other member states, and that is what happened.

I acknowledge there was an issue regarding delay. However, in the Department of Justice and Equality, perhaps more than any other Department, if one takes the criminal law reform side of the house along with the civil law reform side of the house, we have been particularly busy in recent times. As to one of the reasons this legislation is only coming to the House today, I cite, O cite the fact I have done in excess of 100 hours in this House on the Judicial Appointments Commission Bill 2017. With that legislation happily enacted by the Seanad, it will now result in a greater flow of legislation from my desk and from my Department.

Senators Mac Lochlainn, Conway and Bacik mentioned the issue of the withdrawal of the UK from the EU and, of course, it is true this will present certain challenges in the area of EU directives, in particular those that have been enshrined in legislation in the UK. These are issues for the future relationship and it would be not appropriate for me at this stage to speculate. However, I am happy to keep the House abreast of developments as regards the future relationship in the area of security and criminal law, having regard to its importance. In the meantime, I am very much aware of the value and importance of co-operation and a strong and positive relationship with the UK authorities in sharing, exchanging and comparing notes on this ECRIS-type information, among other types, through a range of criminal justice directives. It is important that mutually beneficial relationship continues, irrespective of the format of relationships, and that will be seen over the next year.

On the matter of storage of data, which was raised by Senator Mac Lochlainn, the central storage will be the central database at the National Vetting Bureau in Tipperary. On the issue of the use of the system by the Garda on an administrative basis, as I said, that is fully legal and has been accepted by our EU colleagues. That said, however, it is important that we proceed to statutorily recognise the directive, and that is what I hope we will do in the coming period in the Seanad.

Question put and agreed to.