merrion street

Seanad Éireann

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.