Seanad ÉireannNational Vetting Bureau (Children and Vulnerable Persons) Bill 2012Second Stage Speech – 27 November 2012Kathleen Lynch T.D., Minister of State with responsibility for Disability,Equality and Mental Health
A Cathaoirleach,
I am pleased to be here today, on behalf of Minister Shatter, to present
the National Vetting Bureau (Children and Vulnerable Persons) Bill 2012 to
the Seanad.
I would like to commence by highlighting the purpose of this legislation.
In September 2008, the Joint Oireachtas 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.
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 Guidance. 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 already 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, “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 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, 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 the right to
challenge such disclosures, the Bill seeks to ensure that information such
as vague rumours, or 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
40.3.2 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:
· Childcare 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.
· 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 at 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 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.
For practical reasons, to which I will refer later, the Bill will also not
require the vetting of teachers who are superintending annual State
examinations and who are already registered with the Teaching Council.
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 their recommendations
in November 2011. Members of both Houses have already been very supportive
of this Bill when contributing to the consideration of the draft scheme of
the Bill at the hearings by the Joint Oireachtas Committee. The Bill before
you today has been drafted to include provisions to take account of the
issues raised by the Joint Committee.
The Committee recommended that 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, 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 and giving rise
to concern may have come to light.
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 the Minister is
bringing forward a separate piece of legislation – the Criminal Records
Information Systems 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 EU.
In the meantime, the Vetting 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 that the members of this 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 that 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 this House that the Bill will have no impact on Garda
clearance procedures conducted under other legislation. This includes-
· The Irish Nationality and Citizenship Acts, 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 Acts.
· The Road Transport Acts.
· 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 in regard to activities that are 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 relation to 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 Act will be deemed to be registered
following the commencement of the Act. 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 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 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 employs directly
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 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. 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
any criminal records or any specified information which relates to the
applicant. The section also provides that any 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 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, 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 to the Bill. These are regulated
organisations who conduct certain inquiries or who have certain
responsibilities under the law relating to either fitness to practice or
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. That
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 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 Minister Frances Fitzgerald is preparing.
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 who are
currently in positions which would be subject to vetting under the Bill but
who have not previously been vetted because they took up that position
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.
Sections 22 to 32 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 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 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 of the Bill sets out the relevant work or activities relating to
children or vulnerable adults which will be subject to the vetting
requirements of this Bill.
Schedule 2 of the Bill sets out the organisations which will be required to
disclose specified information to the Bureau in accordance with section 19
of the Bill.
Before putting this Bill to the House, there is one issue which I would
like to briefly address and that the concerns the relationship between this
Vetting Bill and the Spent Convictions Bill 2012. That Bill provides that
where a person who is applying for a position which gives them access to
children or vulnerable persons is asked if they have any previous
convictions, they must disclose all convictions, including any convictions
that could otherwise be deemed spent under that Bill. That policy is the
same as applies under the Vetting Bill, and is supported by the provisions
in the Vetting Bill.
Because of the over-riding 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 Bill 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 is taking, on average, 8 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 time frames 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 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 of 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 this Bill to the House.