Appendix B
Screening Regulatory Impact Analysis
1.Purpose
1.1The present Memorandum seeks Government approval to takeover the Spent Convictions Bill 2007 and to allocate Government time for Second Stage in the Dáil and all subsequent Stages in the Oireachtas.
1.2The primary purpose of Deputy Barry Andrews’ Private Members Bill is to establish a mechanism by which persons convicted of minor offences can have a possibility of non-disclosure of convictions for those offences. The Bill is solely concerned with providing in the criminal law for non-disclosure of certain minor offences.
1.3The Children Act 2001, section 258 already provides a ‘non-disclosure’ regime for persons who are convicted of offences committed while under 18 years, where the conviction is followed by a three year conviction – free period. Other than that, there is currently no system under Irish law for non – disclosure or expunging of convictions.
2.Why does this issue now require attention?
2.1 It requires attention due to the procedural requirements in the Dáil.On 25 October 2007, the Dáil orderedthat the Bill should be debated at Second Stage. However, a Private Members Bill may be taken only in Private Members time. Private Members time in the Dáil is reserved for the Opposition. Therefore, as a Government Deputy, Deputy Andrews will not be able to secure Private Members time for a Second Stage debate. The Bill is therefore unlikely to progress unless the Government makes time available. If, however, the Government agrees to adopt the Bill and to make its time available for debate on it, the Government must give prior notice on the Order of Business that Government time is being made available for the Second and all subsequent Stages. Such a motion may be presented any day on the Order of Business. The matter will then become one to be agreed between the Whips in the normal way when business is being arranged. .
2.2 At its meeting on 4 December 2007, the Government agreed as follows:
“Note was taken that the Minister for Justice, Equality and Law Reform would bring proposals to Government for a regime which will expunge details of criminal records after a certain period, in certain circumstances.”
Following the Cabinet meeting of 23 January 2008, the Minister directed that a Memorandum for the Government be prepared for the Government meeting of 30 January 2008 on the question of the Government taking over this Bill and as a result, it would make Government time available in both Houses for debate.
3.Intended effects of legislation
3.1 Deputy Andrews’ Bill applies to convictions for minor offences only, i.e. the possibility of non – disclosure will be available only in the case of offences where a penalty not exceeding 6 months imprisonment or a lesser penalty (including a fine) was imposed. It will not apply in the case of sexual offences or to offences reserved for trial by the Central Criminal Court. All previous convictions will continue to be disclosed in sentencing hearings following a criminal conviction.
3.2 The possibility of non – disclosure would arise automatically (i.e. no application required) but only after a 7 year conviction – free period has elapsed (or 5 years where a non – custodial penalty was imposed). The Bill is intended to apply to adults, but this is not stated explicitly.
3.3 The Bill is intended to promote rehabilitation and the integration of offenders. It is a progressive measure that will enable many people who have convictions for minor offences move on to develop careers and play a full role in their communities. Ireland is, along with Slovenia, the only EU Member State without a formalised system that would allow persons the possibilities for at least non-disclosure in the case of minor offences.
3.4Non-disclosure rather than the complete expunging of records of convictions represents an appropriate way forward. A complete wiping of a conviction from the criminal record would present difficulties when consideration is being given to providing a statutory basis for vetting of employees in relation to posts in a variety of sensitive areas, particularly in relation to childcare and the care of other vulnerable persons.
4.Background to legislation
4.1 The Spent Convictions Bill reproduces the draft Bill prepared by the Law Reform Commission and attached to its Report on Spent Convictions which was published in July 2007. It is based on the principle of non – disclosure of a conviction, rather than a ‘wiping out’ of the conviction. In other words, the conviction will remain on the records but there will be no obligation to disclose it in certain circumstances. However, the obligation to disclose a conviction will remain in the case of certain employments, e.g. childcare, civil service, etc.
4.2The Spent Convictions Bill 2007 was introduced in October 2007 as a Private Members Bill by Deputy Barry Andrews. It is now awaiting Second Stage.
5.Options
5. 1Reforming the criminal law in order to provide for non-disclosure of minor convictions has been advocated by the Law Reform Commission and has precedent in the Children Act 2001. If this is to be brought about, the only realistic option is to enact the appropriate legislation.
5.2 The Government has taken the general position that the matter should be addressed (see its Decision of 4 December 2007).
5.3 The Minister considers that the proposal from the LRC promotes the rehabilitation of minor offenders and that the Bill forms a suitable basis for legislation but reserves the right to amend the present Bill during its passage through the Houses.
6.Identification of costs, benefits and impact of the option recommended.
6.1The implementation of the Bill’s proposals is expected to be cost neutral. The record of criminal convictions already exists. As an eligible conviction will be automatically considered “spent” after the appropriate rehabilitation period, there will be no requirement for processing applications and the associated administrative resources. The Bill has only minor impacts in relation to Garda time and resources since, as noted, the criminal records already exist and are already checked. The Bill will not increase in any significant way the demand for checks.
6.2The social and economic impacts of the Bill’s proposals are very positive. They will assist re-integration and rehabilitation of offenders, they will enable persons who are no longer involved in crime to build careers and establish themselves in their communities.
7.Consultation
7.1Consultations have taken place internally in the Department of Justice, Equality and Law Reform with Divisions such as Courts Policy, Prisons and Probation Policy, Immigration, Equality, Youth Justice and Garda. External contacts with relevant bodies such as the Garda Síochána, the Data Protection Commissioner, the Adoption Board, the Private Security Authority, the HSE, the Ombudsman for Children, the Department of Education and Science, the Department of Health and Children and the Department of Community, Rural and Gaeltacht Affairs are underway.
7.2 These consultations may result in amendments being proposed, to refine the Bill and to
address specific issues.
8.Enforcement and Compliance
8.1As all the proposals in the Bill are strictly criminal law provisions, enforcement will be a
matter for the Garda Síochána, the Director of Public Prosecutions and the Courts.
9.Review
9.1 The new provisions will be kept under continuing review as to their practicality and workability. This is a feature of all new criminal law.
10. Further Analysis
10.1As this Bill deals exclusively with criminal law, a full Regulatory Impact Analysis has not been conducted.