Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I wish him well in his brief. I am sure there will be all kinds of issues he will pursue me on but I hope that in the national interest there will be issues on which we can co-operate. I am sure we will have some interesting exchanges in the House.

I am pleased to be here today to present the National Vetting Bureau (Children and Vulnerable Persons) Bill 2012 to the House. I would like to commence by highlighting the purpose of this legislation. In September 2008, the Oireachtas Joint Committee on the Constitutional Amendment on Children published an interim report which recommended that legislation be introduced to regulate and control the manner in which records of criminal convictions and information including what is termed "soft information" can be stored and disclosed by the Garda Síochána and other agencies for the purpose of child protection.

This Bill will provide the necessary legislation. The Bill will provide a statutory basis for the existing procedures whereby the Garda criminal records database is used to vet persons applying for employment working with children or vulnerable adults. These vetting procedures already operate under the Children First national guidelines. The requirement to conduct vetting for the positions covered by the Bill is therefore not new. Currently about 300,000 vetting applications are processed each year by the Garda central vetting unit. The primary purpose of the Bill is to put the procedures that have been developed to vet these applications into law. More importantly, the Bill also makes it mandatory for persons working with children or vulnerable adults to be vetted, whereas at present this is done on the basis of a voluntary code. The Bill will also create offences and penalties for persons who fail to comply with its provisions.

In addition, the Bill provides for the use of "soft" information, which is referred to as "specified information" in the Bill. "Specified information" is information other than a court determined criminal record. For example, "specified information" includes conclusions from investigations of child abuse or neglect that have been conducted by the HSE, where such investigations have concluded that a person poses a threat to children or vulnerable persons.

"Specified information" also includes similar conclusions arising from fitness to practice inquiries by statutory bodies such as those conducted by the Medical Council, the Nursing Council or the Teaching Council. "Specified information" also includes information arising from Garda investigations of criminal offences where a prosecution has not been taken but where there is a bona fide concern that a person poses a threat to children or vulnerable adults. The Bill sets out procedures to allow the disclosure of specified information for vetting purposes. It is important to note that before such information can be disclosed, the person who is the subject of the information must be given a copy of that information and must be given the opportunity to challenge the proposed disclosure. The Bill also provides that a disclosure of such information will only occur where there is a bona fide concern that the person poses a threat to children or vulnerable persons, and the information has been assessed for its reliability and relevance, and the disclosure is in accordance with principles of natural justice. The Bill provides for the appointment of an independent appeals officer who will be responsible for assessing and deciding appeals against the proposed disclosure of specified information.

By confining the information that can be disclosed to information arising from criminal investigations or statutory inquiries, and by ensuring that individuals who are the subject of such information have their right to defend their name protected in the Bill, I am seeking to ensure that information such as vague rumours, innuendo or false allegations cannot form any part of the vetting process. I am also seeking to provide for the constitutional right of all citizens to protect their good name, as provided in Article 40.3.2 of the Constitution.

The Schedule to the Bill lists in detail the types of work or activities that require vetting. These include child care services; schools; hospitals and health services; residential services or accommodation for children or vulnerable persons; treatment, therapy or counselling services for children or vulnerable persons; provision of leisure, sporting or physical activities to children or vulnerable persons; and promotion of religious beliefs.

The Bill provides exemptions from vetting for certain arrangements. Private baby-sitting arrangements, private tuition and other private arrangements are exempt from the vetting requirements under the Bill. It is my view that it is not appropriate or feasible for the State to require vetting in regard to citizens' private family arrangements. Private baby-sitting arrangements are already exempt from vetting in child care regulations under the Child Care Act of 1991.

There is also exemption from vetting for persons assisting at sports or community events on an occasional basis. This exemption is necessary to focus the vetting requirement on persons working with children or vulnerable adults on an ongoing basis. It should be borne in mind that where persons help out on an occasional or annual community or sports event, they typically do so in full public view.

It is not feasible or desirable to vet every parent assisting at every school or sports or community activity in the country. Instead, we have to be practical and the Bill therefore focuses on requiring vetting for persons such as sports coaches or trainers or youth workers or teachers, or any other persons, paid or unpaid, who are working with children or vulnerable persons on an ongoing basis.

The Scheme to this Bill was considered in detail by the Oireachtas Joint Committee on Justice, Defence and Equality. The joint committee obtained submissions from relevant organisations and published recommendations in November 2011. Members of this House have already been very supportive of this Bill when contributing to the consideration of its draft scheme at the hearings by the joint Oireachtas committee. The Bill has been drafted to include provisions to take account of the issues raised by the joint committee.

The committee recommended that the legislation provide for vetting to be portable between different employer organisations in order to cut down on multiple applications for vetting of the same individual. This, however, may not be feasible. For example, a person who was vetted for a position with one employer last year might have had no convictions at the time of applying for that position but might have subsequent convictions in the current year, or might have come to the notice of child care services in the context of an allegation of child abuse. I look forward to hearing the further views of Deputies on this issue in the course of the Bill's legislative progress.

The joint Oireachtas committee also raised concerns about the lack of information from some other states about the criminal records of citizens of those states who are seeking work here. In that regard, I will be introducing a separate Bill, the criminal records information systems Bill, which will provide for enhanced co-operation in exchanging criminal records information with other states. The Scheme of that Bill was published earlier this year and I expect to publish the Bill in 2013. The Bill will implement an EU member states' agreement in regard to the exchange of criminal records data between EU states. It will also provide for exchange of criminal records information with states outside of the EU.

Members will be only too aware of the underlying need to have this legislation in place. We are all now very conscious of the abuse of children and vulnerable adults, which has taken place in a variety of institutional and other settings. It is clearly very important that we have clear mandatory standards for vetting of persons working with children and vulnerable adults in those positions. The Bill is essential to ensure that employers can make informed decisions in instances where persons are seeking employment which involves access to children or vulnerable persons.

The Bill will have no impact on Garda clearance procedures conducted under other legislation. This includes the Irish Nationality and Citizenship Acts, bearing in mind that section 15 of the 1956 Act requires the Minister to be satisfied that an applicant for citizenship is of good character; the Public Service Management (Recruitment and Appointments) Act 2004; the Taxi Regulation Acts; the Road Transport Acts; and the Private Security Services Act 2004. These Acts already require Garda clearance of persons based on a search of the Garda criminal records.

I will outline for the House the key provisions contained in the Bill. The national unit of the Garda Síochána known as the Garda Central Vetting Unit will, after the commencement of section 28, be known as the National Vetting Bureau.

Section 3 provides clarification in regard to activities that are exempt from the provisions of the Bill. As I have indicated, the exemptions will include family relationships, private arrangements and persons who assist occasionally and on a voluntary basis in school, sport or community-related events.

Section 6 provides for the establishment by the chief bureau officer of the various databases containing information relevant for the purpose of vetting of persons seeking positions working with children or vulnerable persons. The databases will include a register of relevant organisations, a register of specified information and a register of vetted persons as provided in sections 8, 10 and 11, respectively.

Section 7 sets out the functions of the bureau in regard to the maintenance of these databases, and provides that the bureau is responsible for vetting services in respect of relevant work or activities relating to children or vulnerable persons. Section 8 provides that the bureau will maintain a register of relevant organisations which can avail of vetting services. This section also includes a provision that organisations already registered with the bureau before commencement of the Act will be deemed to be registered following the commencement of the Act. There is also a provision that a relevant organisation shall not be required to comply with the requirement to register where another relevant organisation, which is registered with the bureau, submits, on behalf of the first organisation, applications for vetting disclosures. This provision is being included in order to enable organisations such as schools or crèches to submit applications through a representative body without requiring each and every school or crèche to register individually. There is also a provision that an organisation which fails to comply with the requirement to register under subsection (2) is guilty of an offence.

Section 9 provides for the registration of liaison persons. These are the persons in each organisation responsible for submitting the vetting application to the vetting bureau. Section 10 establishes the register of specified information, or soft information. This is information which gives rise to a bona fide concern that the vetting subject may harm, attempt to harm or put at risk of harm a child or vulnerable person. Section 11 provides for the establishment of a register of vetted persons and sets out the information relating to a vetted person which is to be included in the register.

Section 12 prohibits the engagement of persons to do relevant work or activities relating to children or other vulnerable persons, unless that person has been subject to the vetting procedures under the Bill. It includes a provision for a defence if a person can show that he or she did not know, nor could be reasonably expected to know, that the work for which a person was engaged constituted relevant work or activity.

Section 13 sets out the procedures to be followed in making applications for vetting disclosures. It confirms that an application from a relevant organisation for a vetting disclosure may be on its own behalf or on behalf of another relevant organisation that it represents for the purpose of the vetting procedures under the Act. This section also specifies the information relating to the vetting subject which must be included in the application.

Section 14 sets out the procedures to be followed by the bureau in considering an application for a vetting disclosure. The section provides that following the receipt of an application for a vetting disclosure, the bureau will undertake an examination of its own database and the Garda Síochána criminal records for the purpose of establishing whether there are any criminal records or any specified information relates to the applicant. The section also provides that, where a member of the bureau staff considers that there is specified information in regard to the applicant, it will be referred to the chief bureau officer for assessment as to whether the information should be disclosed.

Section 15 sets out the procedures to be followed by the chief bureau officer in assessing specified information for the purpose of its inclusion in a vetting disclosure. This includes a provision that the vetting subject must be provided with a summary of the information and must be informed of his or her right to make a written submission in relation to the information. A subsequent decision to disclose the specified information requires the chief bureau officer to believe that the information in question is of such a nature as to give rise to a bona fide concern that the vetting subject may harm, attempt to harm or put at risk of harm a child or vulnerable person. The chief bureau officer must also be satisfied that the disclosure is necessary, proportionate and reasonable in the circumstances, and relevant to the particular position that the person is applying for.

Section 16 provides that where a vetting disclosure contains details of criminal records or specified information the relevant organisation must provide a copy of the disclosure to the vetting applicant. The section also provides that the organisation may consider and take into account the information disclosed in assessing the suitability of the person for the position for which they have applied.

Section 18 sets out the manner of an appeal against a disclosure of specified information, which shall be in writing, be accompanied by grounds for appeal and indicate whether an oral hearing is sought. Having considered the appeal, the appeals officer may affirm, in whole or in part, the decision of the chief bureau officer or may set aside that decision, in whole or part. An appeal to the High Court on a point of law is also provided for and this determination is final and conclusive.

Section 19 requires the scheduled organisations listed in Schedule 2 to notify the bureau of specified information in respect of a person. For example, if, as a result of a statutory inquiry by the HSE, or a fitness-to-practise process by a statutory body, the organisation has a bona fide concern that the vetting subject may harm, attempt to harm or put at risk of harm a child or vulnerable person, that organisation is required to inform the bureau of the information giving rise to that concern. The organisation is also required to notify the person in respect of whom there is such a concern that it is notifying the bureau of that concern. This section also contains a provision stating that the obligation to report under this section is in addition to any other obligation to disclose that information to the Garda Síochána or to any other person.

This is important in order to ensure that the reporting requirement under this Bill is distinct from and in addition to the obligation to report concerns to the HSE under the Children First Bill, which my colleague, the Minister, Deputy Fitzgerald, is preparing. There is a separate obligation to report where there are allegations of, for example, child abuse to the Garda Síochána in the context of the withholding of information Act, which came into force only a few weeks ago.

Section 20 provides for the periodic re-vetting of persons previously vetted for their current positions. Section 21 provides for the retrospective vetting of persons who are currently in positions that would be subject to vetting under the Bill but who have not previously been vetted because they took up their positions prior to the availability of vetting in the State. There are approximately 100,000 persons in the health and education sectors who were recruited before the current vetting procedures were introduced and who have therefore not been vetted. It is important that this should be remedied.

Section 22 provides that the chief bureau officer be appointed by the Garda Commissioner. This section also allows the chief bureau officer to delegate his or her functions under the Act to specified members of staff of the bureau.

Section 23 provides that the chief bureau officer may assign one or more members of staff as compliance officers for the purposes of the Act. The purpose of the compliance officers is to investigate any complaint that a registered organisation is failing to operate adequate or proper vetting procedures.

Section 24 provides for a minor amendment to the Garda Síochána Act 2005 to make it explicit that the functions of the Garda Síochána include the provision of vetting services. Section 25 makes it an offence to falsify a vetting disclosure, to make a false statement for the purpose of obtaining or enabling another person to obtain a vetting disclosure or to allow a vetting disclosure to be falsely used by another person.

Section 26 sets out the penalties in respect of offences under the Bill. These include offences of failing to make a vetting application for a position requiring vetting and falsifying records in regard to vetting applications or disclosures. This section provides that the penalty on summary conviction is a class A fine or imprisonment for a term of up to 12 months or both and on conviction on indictment to a fine of up to €10,000 or imprisonment for up to five years or both.

Section 31 permits the introduction of fees for the purpose of the provision of vetting services. However, this is simply an enabling provision to allow fees to be charged for certain categories of vetting application, if appropriate.

Schedule 1 sets out the relevant work or activities relating to children or vulnerable adults that will be subject to the vetting requirements of this Bill. Schedule 2 sets out the organisations that will be required to disclose specified information to the bureau in accordance with section 19.

Regarding spent convictions, nothing in the Spent Convictions Bill 2012 affects the disclosure of a conviction under the provisions of this Bill, as a conviction may give rise to important considerations with regard to whether an individual's previous conduct, which resulted in a conviction, raises an alarm bell with regard to his or her capacity to work with children or vulnerable adults. This is a difficult issue, as some of those convicted of offences in the past and who have substantial insight into their past conduct, can make a contribution of great value, for example, when working with troubled children who are out of control or who themselves have become embroiled in the juvenile justice system. I will value and am greatly interested in the views of Deputies as to how this particular issue might be best dealt with in order to reconcile the two Bills and to ensure that the correct balance is achieved. This is a particularly important issue.

I wish to make particular reference to the work undertaken by the Garda central vetting unit in recent years, particularly during my term as Minister. As I mentioned earlier, the unit, which is led by Superintendent Pat Burke, currently processes some 300,000 vetting applications per year. I would like to commend Superintendent Burke and his team on their work in reducing the processing time for vetting applications from 12 to 14 weeks when I was appointed as Minister in March 2011 to between two and three weeks by May 2012. This improvement was of enormous benefit to individuals and organisations throughout the State and tackling the backlog of citizenship applications would not have been possible without the help of the Garda central vetting unit.

I am aware that the number of staff in the unit decreased by 20 between March and May this year as temporary staff contracts came to an end. This reduction in staff numbers has been partly offset by the redeployment of 15 clerical officers from the Department of Agriculture, Food and the Marine to a sub-office of the Garda central vetting unit in Ennis in May. I understand that the new staff have recently completed their training period. In the interim, however, processing times have again increased. The Garda central vetting unit, which will become the national vetting bureau under the provisions of this Bill, will have a substantially expanded role under this new legislation and I am engaged in discussions with the Department of Public Expenditure and Reform to ensure adequate staffing to meet these new demands.

I would like to thank the Members of this House who have already provided support for this Bill when contributing to the hearings by the Joint Oireachtas Committee on Justice, Defence and Equality. I am sure that the debate in this House on the Bill will be very informed and constructive. I will follow intently what Members say with a view to seeing whether there are improvements we can make to the Bill on Committee Stage.

I have already congratulated Deputy Niall Collins on his new position as justice spokesperson. I also wish to congratulate Deputy Mac Lochlainn in taking up his position. I apologise to both Deputies, as I have another commitment that I must keep. I assure them that, although I will be unable to be present in the House for their contributions, I will carefully read the transcript of this evening's speeches and follow what is stated in the House during the course of what is an important Second Stage debate on a Bill of substantial significance. This Bill forms part of the set of legislation that is designed to ensure that we provide improved and better protection for children in this State. We have the commitment of my colleague, the Minister, Deputy Fitzgerald, who is preparing legislation to put the Children First guidelines on a statutory footing. We have already brought into force legislation on the furnishing of information to An Garda Síochána to ensure that those who have information with regard to child abuse furnish it.

This Bill is the third in the trilogy of legislation to be enacted. It is particularly important in the context of heading into a children's referendum to provide for the express constitutional recognition of the rights of children that we do everything necessary to ensure that we have the most effective statutory backup to ensure that previous failures in the protection of children are not repeated in future.

See this speech in context