Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I am pleased to be here on behalf of the Minister for Justice and Equality, Deputy Alan Shatter, to present the National Vetting Bureau (Children and Vulnerable Persons) Bill 2012.

I will now highlight the purpose of the Bill. 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 "soft information", can be stored and disclosed by the Garda Síochána and other agencies for the purpose of child protection. The 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. It will, however, 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. It will also create offences and penalties for persons who fail to comply with its provisions.

As I have mentioned, provision is made for the disclosure of "soft information" which in the Bill is referred to as "specified information". "Specified information" is information other than a record of a criminal conviction or pending criminal prosecution. For example, it 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 adults. "Specified information" also includes similar conclusions arising from fitness to practise 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 for 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, the information has been assessed for its reliability and relevance, and the disclosure is in accordance with the 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 the right to challenge such disclosures, the Bill seeks to ensure that information such as vague rumours, innuendo or false allegations cannot form any part of the vetting process. The Bill also seeks to ensure that the constitutional right of all citizens to protect their good name, as provided in Article 40.3.20 of the Constitution is protected.

Schedule 1 to the Bill lists in detail the types of work or activities that require vetting. These include work in: 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 the promotion of religious beliefs.

The Bill provides exemptions from vetting for certain arrangements. Private babysitting arrangements, private tuition and other private arrangements are exempt from the vetting requirements under the Bill. It is the Government's view that it is not appropriate or feasible for the State to require vetting in regard to a person's private family arrangements. There is also exemption in the Bill from vetting for persons assisting at sports or community events on an occasional basis. This exemption is necessary in order 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 neither feasible nor desirable to vet every parent assisting at every school, sports or community activity in the country. Instead, we must be practical and the Bill therefore focuses on requiring vetting for persons such as sports coaches, trainers, youth workers, teachers or any other person, paid or unpaid, working with children or vulnerable persons on an ongoing basis. For practical reasons, to which I will refer later, the Bill also does not require the vetting of teachers who are superintending annual State examinations and are already registered with the Teaching Council.

The scheme of the 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 its recommendations in November 2011. Members of the Oireachtas have been very supportive of this Bill when contributing to the consideration of the draft scheme of the Bill at the hearings by the joint committee. The Bill has been drafted to include provisions to take account of the issues raised by the joint committee. The committee recommended the legislation should 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, in a case where 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 information relating to that person which gives rise to concern may have come to light.

The joint committee also raised concerns about the lack of information from other states about the criminal records of citizens of these states who are seeking work here. In that regard the Minister is bringing forward separate legislation, the criminal records information system Bill, which will provide for enhanced co-operation in exchanging criminal records information with other states. That Bill is expected to be published in 2013. It will implement an EU instrument providing for the exchange of criminal records data between EU member states. It will also provide for the exchange of criminal records information with states outside of the European Union.

In the meantime, the National Vetting Bureau (Children and Vulnerable Persons) Bill provides in the definition of "criminal offence" for the vetting disclosure to include offences committed outside the State provided that the same act or omission would be an offence if committed in this State. I believe the Members of the House are very supportive of this legislation.

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 obviously very important that we have clear mandatory standards for the vetting of persons working with children and vulnerable adults. The Bill is essential to ensure employers can make informed decisions in instances where persons are seeking employment which involves access to children or vulnerable persons. I should point out to the House that the Bill will have no impact on Garda clearance procedures conducted under other legislation, which includes the Irish Nationality and Citizenship Act, section 15 of which 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 Act; 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 would now like to outline for the House the key provisions contained in the Bill. The existing unit of the Garda Síochána known as the Garda central vetting unit will, under the Bill, be known as the national vetting bureau. Section 3 provides clarification with regard to activities exempt from the provisions of the Bill, which I have already outlined. Section 6 makes provision for the database which is to be established and maintained by the chief bureau officer. The database will be made up of 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 the maintenance of the database and also provides that the bureau is responsible for vetting services in respect of relevant work or activities relating to children or vulnerable persons. Section 8 requires the chief bureau officer to 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 Bill will be deemed to be registered following the commencement of the Bill. In addition, 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 included 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 applying for and receiving vetting disclosures from the bureau.

Sections 10 and 11 provide for the establishment of the register of specified information and the register of vetted persons. 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 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.

As previously mentioned, teachers registered with the Teaching Council performing the temporary function of superintending the annual State examinations are exempt from vetting. The State Examinations Commission directly employs approximately 8,000 persons on a short-term basis for the purpose of supervising these examinations. Some are employed with as little as a few hours notice on the day of examinations to cover local contingencies. Most of those employed directly by the commission are teachers already employed in schools and registered with the Teaching Council. It is imperative that there should be no unnecessary disruption to the operation of the State examinations. Persons working as teachers and registered with the Teaching Council should not require vetting for the purpose of short term, temporary employment supervising exams.

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 made on its own behalf or on behalf of another relevant organisation that it represents for the purpose of the vetting procedures under the Bill. 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. There is provision 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 criminal records or specified information which relates to the applicant. The section also provides that specified information relating to the applicant 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 on the information. A subsequent decision to disclose the specified information requires the chief bureau officer to believe 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 for which the person is applying.

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, accompanied by grounds for appeal and indicate whether an oral hearing is sought. Having considered the appeal, an appeals officer, appointed under section 17, may affirm in whole or in part the decision of the chief bureau officer or may set aside that decision, in whole or in 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 concerns the notification of information to the bureau from those organisations listed in Schedule 2. These are regulated organisations which conduct certain inquiries or which have certain responsibilities under the law relating to either fitness to practice or the protection of children. For example, if, as a result of a statutory inquiry by the HSE, or a fitness to practice 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. This information will then be entered into the register of specified information maintained by the bureau. 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 this concern. The section also contains a provision that the obligation to report under it is in addition to any other obligation to disclose this information to the Garda Síochána or to any other person. This is important to ensure the reporting requirement under the Bill is distinct from and in addition to the obligation to report concerns to the HSE under the children first Bill being prepared by my colleague, the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald.

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

Sections 22 to 32, inclusive, contain miscellaneous provisions including a requirement on the chief bureau officer in section 23 to present, through the Garda Commissioner, an annual report to the Minister. The Minister will be required to place copies of this report before both Houses of the Oireachtas.

This will ensure that we have an annual view as to how the bureau is working, whether it is adequately staffed and resourced, whether delays are arising and, in the context of the bureau and the chief bureau officer in charge, whether there is some legal anomaly or difficulty identified that needs to be addressed in terms of legislation.

Section 24 provides that the chief bureau officer may assign one or more members of staff as compliance officers for the purposes of the Bill. 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 26 makes it an offence to falsify a vetting disclosure, or 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 be falsely used by another person.

Section 32 permits the introduction of fees for the purpose of the provision of vetting services. This is simply an enabling provision to allow fees to be charged for certain categories of vetting application, if appropriate.

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

Before putting the Bill to the House, there is one issue which I would like to briefly address, namely, the concerns about the relationship between this Bill and the Criminal Justice (Spent Convictions) Act 2012. That Act provides that where persons applying for positions which give them access to children or vulnerable persons are asked if they have any previous convictions, they must disclose all convictions, including any convictions that could otherwise be deemed spent under that Act. The same applies under the National Vetting Bureau (Children and Vulnerable Persons) Bill, and is supported by the provisions in the Bill. Because of the overriding need to protect children and vulnerable persons, a policy decision has been taken that the spent convictions provisions should not apply where persons are applying for these positions. This is because relatively minor convictions which may ordinarily be deemed spent would still have a particular relevance in regard to persons working with children or vulnerable persons. For example, when the spent convictions Act is in force, a conviction for theft or fraud may become a spent conviction if the penalty imposed is less than 12 months imprisonment and the other criteria are satisfied. However, that information may be relevant to a position of trust working with a vulnerable person. Similarly, many road traffic convictions may become spent convictions, but again these may be relevant to a position working as a driver of a school bus or a public service vehicle for persons with disabilities. For these reasons, it has been decided that in regard to the positions covered by the National Vetting Bureau (Children and Vulnerable Persons) Bill, all criminal records will be disclosed.

I wish also to make particular reference to the work of the Garda central vetting unit. The unit is expected to process some 350,000 vetting applications in 2012 on behalf of approximately 20,000 organisations which are registered with it. The processing time for vetting applications fluctuates during the year due to seasonal demands when the volume of applications received from certain sectors can increase. At present it takes on average eight weeks to process applications. There will always be a reasonably significant time period required to process a vetting application. All organisations registered for Garda vetting are aware of the processing timeframes for the receipt of Garda vetting and have been advised to factor this into their recruitment and selection process. The Minister is very conscious of the need to keep this processing time to a minimum. 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 the new legislation and the Minister is engaged in discussions with the Department of Public Expenditure and Reform to ensure adequate staffing to meet these new demands.

On behalf of the Minister, I thank the Members of this House who have already provided support for the Bill when contributing to the hearings by the Joint Oireachtas Committee on Justice, Defence and Equality. I am sure that the debate on the Bill in this House will be very informed and constructive and I know that the Minister will be kept informed of those discussions. I commend the Bill to the House.