I welcome the Minister for Justice and Equality, Deputy Alan Shatter, to the House.
National Vetting Bureau (Children and Vulnerable Persons) Bill 2012: Committee Stage
Section 1 agreed to.
SECTION 2
Amendments Nos. 1 to 8, inclusive, and 10 are related and will be discussed together, by agreement of the House. Is that agreed? Agreed.
I move amendment No. 1:
In page 8, paragraph (a), between lines 4 and 5, to insert the following:
“(v) in their individual capacity, engages in the provision of child-minding services for reward for any period of time, to include persons who engage in the provision of a nanny and/or au pair service or similar such service whether in their own home or in the home of their employer,”.
I welcome the Minister to the House and I propose to discuss amendments Nos. 1, 2 and 10. Fianna Fáil believes the exclusion of commercial childminders from the vetting requirements introduced by the Bill is a major mistake. I raised this issue on Second Stage and these amendments are designed to address that deficiency. I do not understand the logic of vetting people who work in childminding centres but not nannies, au pairs or those who work as commercial childminders and have unsupervised access to children in their own homes. The amendments specifically exclude babysitters. I am not suggesting that there should be a vetting requirement if a neighbour's teenage daughter is babysitting for pocket money or a grandmother is taking care of her grandchildren. We believe, however, that parents should be able to apply to the Garda vetting unit to check the backgrounds of those who are seeking employment as nannies or au pairs. We welcome the legislation in spirit, and we welcome other improvements in the Bill. It is important, however, not to create a system where those who pose a risk to children opt to work in the least regulated part of the sector and can get employment in private homes instead of with child care providers. These amendments are important and I hope the Minister can accept them.
While I understand the intent behind the amendments I am unable to accept them. If accepted, these amendments would contravene the provisions in the Bill that exempt private arrangements from vetting. Furthermore, the amendments would require vetting of persons who provide any level of childminding for any period of time. This is simply not practical.
The Child Care (Pre-School Services) Regulations 2006 require vetting for all persons working in child care facilities that provide a service for three or more children. The National Vetting Bureau (Children and Vulnerable Persons) Bill also requires that any agency or relevant organisation providing childminding, nanny or au pair services must apply for vetting disclosures in respect of the persons they employ to provide such services.
The "relevant organisations" definition deliberately excludes private arrangements made by parents to have their children minded outside of regulated child care services. This is for two reasons. First, it is not practical or feasible for the State to seek to police all private childminding arrangements. If a parent chooses a grandparent, an in-law, a neighbour, a nanny, an au pair, a sibling or a family friend to mind their child, whether that person is paid or unpaid, the parent is free to make child care arrangements that are appropriate to their circumstances. Second, it is not the intention to criminalise parents for making such arrangements. It is, therefore, not feasible to require vetting disclosures in respect of such private arrangements.
The Senator said, and I hope I do not misquote her, that she did not intend that a neighbour's child who was minding young children in their home would come under this requirement. My experience as a parent over many years was that when a neighbour's older child was babysitting, they were usually paid for the activity. That is a commercial arrangement, although it may not be the commercial arrangement that would be put in place between adults.
The Senator's first amendment proposes to insert the words, "in their individual capacity, engages in the provision of child-minding services for reward for any period of time". Both my children are now adults but the amendment would mean that if I had a ten year old child and an 18 year old son or daughter of a neighbour was going to engage in childminding and I was going to pay them an appropriate sum for a few hours of childminding, I would have to have them vetted. If I did not have them vetted, I could be committing a criminal offence because I had not complied with the provisions of the Bill. We would be making it impossible to continue the informal childminding arrangements that have gone on for decades, if not centuries, in homes throughout this country and most countries around the world. This is why private arrangements must be excluded from the Bill.
Private arrangements are not always of the type where a co-operative and well meaning aunt, uncle or grandparent will give of their time free. They frequently involve a neighbour's child or a younger relation who gets on well with one's children but who would be happy to earn a few euro childminding. It would be impossible to include this within the vetting arrangements. The principle behind the legislation is that people can still make private arrangements of the nature that were made in years gone by. Parents have, of course, personal responsibility to ensure that any individual who minds their children is appropriate, mature and with judgment enough to care for them properly. There are areas into which we cannot introduce State regulation, nor should we introduce the possibility of criminal penalties being imposed. For that reason, I cannot accept the amendments.
I am disappointed by the Minister's response. I accept his point about casual arrangements which is why I referred in my opening contribution to local teenagers or family members. It was never our intention to include such arrangements. There is, however, a world of difference between that and someone who works as a nanny or an au pair. There have been high profile cases, in this country and across the water, where issues have arisen with nannies. It is important we find a more sophisticated way of dealing with this. That is why I regret the fact that all Stages of the Bill are being taken today. Senator van Turnhout has also expressed misgivings about this. I had hoped we could have agreed a wording that would have taken on board the valid points made by the Minister that the requirements should not be overly inclusive. Neither should it be beyond the capability of the Minister and his officials to come up with a wording that would include the people required.
That might need to be connected in a Government context to the introduction of regulation to cover particular people working in the child care sector. Proper regulation and a registration system for nannies and au pairs, for example, has been called for. Perhaps it needs to be connected with that. I had hoped that, at least if the Minister rejected the amendments on the basis of their lack of sophistication, which I accept, but he accepted the principle underpinning them, he could offer a way to provide for this categories of child minders. For example, we do not want a situation to arise where someone working as a nanny represents a child welfare risk and such a person simply moves to work in another home? That is dangerous and wrong and it should not be beyond the capability of the House to find a way to address it.
I also tabled an amendment to deal with this issue. The difficulty I have is there is one big anomaly in the vetting and protection of children. The Child Care Act 1991 distinguishes three groups. Everyone is in agreement that the first group under section 58(a) are the relatives of the child or children or the spouse of such relatives but that is not what we are seeking to amend. We are referring to sections 58(b) and 58(c), which concern a person taking care of one or more preschool children of the same family and no other such children in that person's home, or a person taking care of not more than three preschool children of different families in his or her home. A total of 92% of victims are abused by either a direct family member, somebody known to the family or somebody trusted by the family. The fact that the children are being minded in their home means they are members of a high risk group and, therefore, we need to explode the "stranger danger" myth. The reality is a child is most likely to be abused by someone known to, and trusted by, the family.
I agree with the Minister that there is a major difference between an informal, occasional child minding arrangement and an ongoing arrangement for a monetary consideration, which is what we are concerned with. I listened carefully to the Minister's argument and I could use the same argument not to vet tennis coaches because they often engage in one-on-one training of children in a private arrangement with their families. I do not know why the Minister is protecting this group. This sector is unregulated. The Minister said the parents would have to vet. Why can such childminders not have to become a member of a professional organisation such as Childminding Ireland, or Early Childhood Ireland? Why can those organisations not vet on behalf of the parents? There are ways around this. Parents need to know the person minding their child in their home, as opposed to a public place or somewhere other people can interact with them, has been vetted. These minders are members of a high-risk group and that is why I tabled an amendment. I do not say it is a perfect amendment and I will be happy with any amendment that deals with this issue. This anomaly needs to be addressed.
I am also disappointed with the Minister. The argument has been made clear relative to his response. This is about persons who do this work for reward, specifically set up a child minding service and who may not even know the children. This is not about those engaged in personal intrafamily arrangements or neighbours. They may have a vague relationship with the families and be from the same neighbourhood but there would not be the intimacy the Minister's reply suggested.
My understanding, following discussions with his officials prior to Second Stage, is a self-employed person could be construed as a relevant organisation. In other words, he or she would be legally obliged to register under the legislation. Will the Minister clarify the position on this for Report Stage? Nothing in the section refers to the category of persons we are discussing, which is probably the Minister's difficulty. If clarity could be brought to that, the self-employed could be deemed to be legally obliged to register.
I have a particular interest in this as chairman of Leitrim county child care committee, which is part of a quasi-national organisation. The vetting issue comes up on a regular basis not only in the context of our board meetings but in our interactions with other statutory committees throughout the State. Some of my colleagues have said that there should not only be a legal obligation on child minders to ensure they are vetted under the new legislation but there should be a designated person within the family who should also be required to vet whenever the primary child minder has to leave the house. The last time I heard reference to stranger danger was a massive hit by Stella Parton, a sister of Dolly Parton, with a song called "The Dangers of a Stranger". I am sure she was not necessarily singing about child abuse but it reminds people of the issue.
Perhaps an accommodation can be found within the section that might provide that a self-employed child minder would be legally obliged to be vetted, which might address the problem.
I welcome Deputy Noel Grealish and his guests to the Visitors Gallery.
The Minister and I may often have grave disagreements on issues of political expediency and policy but I do not underestimate his ability as a legislator. What has been said is logical and makes a great deal of sense. We almost need to step back from this. Similar to Senator Mooney, I was chairman of the Galway city and county child care committee for a number of years and one of the biggest issues we had was ensuring formal recognition of people working as childminders, which is difficult. The more burdens placed on them, the more difficult it was to get them on board as registered childminders. However, the issues raised by Senators Power, van Turnhout and Power are valid. The intention of the legislation is to make society safer for children, no matter which adults come into contact with them. In vetting people who deal with children, it is important to make sure we can take everyone possible into the net in order that it is ensured that anybody who might be a potential danger to children can be identified. The Minister would be well able to do that if the will was there.
The second line of amendment No. 1 states, "in their individual capacity, engages in the provision of child-minding...". If that was changed to "in their professional capacity", would that delineate between somebody who is childminding as part of a casual arrangement in a family scenario and professional childminders? That would indicate that this is what the person does for a living. Would tweaking the wording of the amendment allow the Minister to encompass the safety element suggested by the other Senators while not making it cumbersome and awkward to police? I take that point on board because, as somebody who dealt with the childminding sector in Galway, the issue was always whether vetting could be policed and resourced, given there are many childminders. The amendments have been tabled in good faith and they make sense. I urge the Minister, given his eminent legal ability, to find a wording that takes on board the suggestions being made.
We discussed this difficult issue on Second Stage and we all appreciate a balance must be struck between ensuring the safety of children, which is a paramount consideration, and ensuring the legislation is reasonable. The Minister is correct to point out that reward cannot be the criterion. I know as a parent this is not just about a neighbour's child baby-sitting my child.
Many people have informal arrangements, which are nonetheless commercial arrangements because there is a reward involved, where one has a neighbour minding one's child for an afternoon or for a few hours a week. We must be reasonable about what is required of parents and the Minister is right in that regard. I am also conscious that, as Senator van Turnout said, children are often at risk from people we would never envisage vetting, including relatives and other people living in the family home. We need to be conscious of all of that.
The definitions in the Bill are somewhat complex. I believe that some of the matters Senator Power rightly said should be covered are in fact covered. For instance certain types of au pair arrangements where somebody is au pairing as part of a course of education or training are already covered. Senator Power spoke about a professional nanny service, which is different from a neighbour minding one's child for a couple of hours a week, but they are both commercial arrangements. However, a professional company employing nannies is already covered. We need more clarity on what is covered and what is excluded. Some of the things that all of us agree should be covered are already covered but given that the definitions are somewhat complex and one needs to read through sections 2 and 3, and the Schedule, it can be difficult to see what is covered and what is excluded.
The relevant organisations are referenced in section 2, I believe. I do not want to delay the House by reading through them. Schedule 1 also details a range of things. Legislation in this area has been promised for years - I do not say this to score a political point. Legislation in this area is complex and has been promised since 2003. When I was a member of the Oireachtas Joint Committee on the Constitutional Amendment on Children, we published a report, I believe, in September 2008 urging the then Minister of State with responsibility for children to publish this legislation by Christmas 2008. For a number of years the previous Government delayed it on the grounds that there was a constitutional impediment to dealing with this. The previous Government went through all sorts of gyrations on that issue. When it was first examined by the committee it was decided there was not a constitutional difficulty and the late Brian Lenihan finally accepted that. Rather than publishing legislation by December 2008, as the committee urged, no legislation was published and there has been no protection for children in these areas as envisaged by this Bill in the context of soft information, in particular. Of course the vetting bureau is doing much good work with hard information, but not with soft information. We are now at the end of 2012 and certainly four years on from when the Oireachtas committee examined the matter, I regard it as urgent that we enact this legislation.
The legislation recognises a dividing line, which is that individuals and families are entitled to make certain private arrangements relating to child minding without them being criminalised if they do not engage in vetting - it is not appropriate to criminalise people. Where agencies are recruiting individuals, who might be professional childminders or professional au pairs, it is appropriate that those individuals provided to a family through such a business agency be vetted, particularly when this is a business co-ordinating a broad range of people.
Let us consider the practicality of this. There are all sorts of circumstances relating to children. I fully accept the amendment is well intended - I do not want to be misunderstood in that regard. However, I need to consider the wording of the amendment and not its intention. If a mother and father, married or unmarried, wanted to go out for an evening and asked the neighbour's 17 or 18 year old, who gets on very well with their child, to mind their five or six year old child and they are going to pay the person for that, the Senator's amendment would criminalise the parents for not having the neighbour's child vetted - we cannot do that. People often make family arrangements in all sorts of circumstances at the last minute.
Let us deal with the au pair issues. There are two or three different ways to get an au pair. A family might deal through an agency operating in Dublin, in which case the au pair will be vetted. The vetting of au pairs can have limited usefulness in any case. I know a number of families with young children who in recent years had au pairs. Some of the au pairs were young women in their early 20s who had come from Poland. Some of them were in third level education in Ireland. They were staying with the family and in return for the food and roof over their heads, and they acted as an au pair sometime during the day or the evenings looking after the children. The Garda bureau cannot undertake any vetting that is relevant for a young woman who has arrived from Poland, Italy or Spain to check the position.
Parents take responsibility and there is a responsibility on parents in some areas when they make private arrangements. We are ensuring that people who work with children for clubs or other organisations either voluntarily or for payment are vetted. We are ensuring that people in the education and health sectors are also vetted. There is a broad range of circumstances for vetting. However, we live in an imperfect world and cannot legislate for everything. The dividing line determined in the Bill is that where families make a private arrangement with an individual - not through an agency - they are entitled to some family autonomy. It is almost impossible to address this in legislation in a way that would not create a real problem for practical arrangements that are made every day by families and which give rise to no problem.
We all know of child abuse and institutional abuse in the churches and elsewhere that has received so much publicity. From all the work I have done over many years in family law on child protection issues, I am very aware that more children are abused in the home by relations or by neighbours than have been abused by members of the clergy or by strangers. Based on the research evidence, this State is no different from others. There have been incidents of abuse and prosecutions of individuals involved in childminding. However, the overwhelming majority of abuse has not been by people recruited to mind children. It is much more likely to be the uncle, the grandfather or father. In a smaller number of cases it has been the mother of the child. It could be the father of the child, who lives next door, who has never babysat. We live in a very imperfect world where we cannot legislate for everything. Sadly we cannot legislate to wipe away the fact that children are at risk in certain circumstances. We must recognise a degree of family autonomy and that families are entitled to make private arrangements.
This legislation is new and provides for the use of soft information. While the legislation is quite complex, it is built on the practical experience of how the vetting bureau operates. This is a step we cannot take. I want to ensure we have the best legislation we can have within the constitutional constraints, under which we operate. Of course we have thought about this issue to see if there is a practical way to deal with it. The dividing came down to where families make private arrangements with an individual. whether it is a private arrangement with someone up the road who will come in and clean the house for a couple of hours two or three days a week because the husband or wife is unable to do it or they are both working and there happen to be children in the home, whether someone is formally coming in to childmind or whether it is someone coming on the occasional evening five or six times a year, there are areas into which we cannot enter.
These are areas of privacy for families. Families make their judgments. Many families in this area make good judgments. They do not need vetting.
Then there is the other obvious issue, which is the capacity of the vetting bureau to process all of this. If one looks at the myriad of private arrangements that individuals make some of which have a semi-commercial tint, if someone is looking after one's child one will often pay them for doing so. If someone is coming in to clean one's house one will pay them something to do that and they may come in contact with one's children. There is a limit to the capacity of the vetting bureau to engage in vetting. There will be a considerable amount of important additional work derived from the use of soft information and the provisions of the Bill, and it is important that this is up and running.
I will make one point to Members which applies to every piece of legislation. There is no monopoly of wisdom with regard to any piece of legislation that comes before this House no matter how well it has been teased out. We all are constantly engaged in legislating either because we are revisiting areas that have been previously addressed where flaws have been disclosed or there is a new area in respect of which legislation is required that has not previously been addressed. This is an area in a sense that has not been previously properly addressed in the State by way of legislation. If it emerges, through experience, that there is some frailty in the legislation, if it turns out, in its operation and application, that some amendments are needed, for as long as I am Minister I can say to this House I will not be slow to introduce amending legislation that could be required as a consequence of the experience in working with what we have. However, what we have is very important. It is important we get it enacted before the end of this year, we get it up and running, and that another year does not pass before the substantial additional protections afforded by this legislation to children are in operation.
Before I call Senator Power, I wish to inform colleagues that there are 43 minutes remaining. The order of the House is that this must finish at 1.45 p.m. and my hands are tied in that respect.
As I stated in my opening contribution, it was never our intention for this to cover informal family or neighbour relationships. I thought I had made that clear.
The Minister stated that he accepts the spirit but not the wording. I indicated that I would like to get guidance from him as to how we could improve the wording. Senator Ó Clochartaigh has provided an excellent alternative which would greatly improve the wording that the Fianna Fáil group tabled. It would read better if it stated, "in their professional capacity". I would also suggest that we could delete "for any period of time", because the Minister stated that such could be an hour or a year. It would be my intention that we would not press this amendment but that we would table on Report Stage today - I hope we get to Report Stage because this is a seriously important issue - an improved wording which captures the matter.
The Minister said we should wait until we see if a weakness in the legislation becomes apparent. Personally, I am not happy to do that. I am not happy to wait until there is a situation where somebody who would have been captured by an amendment on this, somebody who has been working as a nanny somewhere where there is an identified child protection risk moves to another employer, does not get checked, the Minister at that stage accepts that there is a problem and seeks to do something about it. I am not happy to take that approach. This is an important issue.
As I stated at the outset, I fully accept that the wording is unsophisticated but is improved by making the changes suggested by Senator Ó Clochartaigh. The word "professional" is key. That makes a significant difference to the intention of the wording by stating that it is "in their professional capacity", which clearly does not include a family member, one's neighbour's teenage daughter or anybody else who is working on a casual basis. Professional is what we are talking about. We will table that amendment and take the Minister's word when he stated he agreed with the spirit of it but not the wording as currently drafted. That enhanced wording should be able to pass muster.
I listened carefully to what the Minister had to say. As I stated on Second Stage, I welcome the Bill. It has been long-promised. It is great that we are debating it and I will do everything I can to ensure its successful passage.
I am torn on this issue. It is an issue, not only in regard to vetting, but which has been neglected, of regulation. It is preschool children on whom I am particularly focused which is why I looked to sections 58(b) and 58(c) of the Child Care Act 1991. It is quite defined there. We are talking about preschool children. It is the early years education sector. The organisations working in this area are the organisations which came to me and asked that we would put forward amendments in this area. They see it as an issue. I do not lightly propose amendment No. 8.
I believe it is an issue. Perhaps we cannot solve it today, and that is where I feel torn. There is an issue about where there is a regular ongoing financial consideration. Nobody I have heard is talking about ad-hoc or occasional arrangements. There are persons who are minding children in their homes every day of the week for a financial consideration and they are acting as a business. The Minister is saying they will be exempt and I have considerable difficulty with that.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Question proposed: "That section 2 stand part of the Bill."
I understand this matter relates to section 2, which is the inclusions, rather than section 3, the exclusions. There is currently a great national debate about the budgetary implications for carers. Perhaps it is, to use a word the Minister used earlier, "obvious", but across the country tens of thousands are in receipt of either carer's allowance or carer's benefit, to apply for which one certifies, and the State agrees, that one provides full-time care and attention for a particular person, and the State is also concurring that the person in question requires full-time care and attention. There are tens of thousands of such arrangements in existence for which the State is making a weekly allowance payable. What is the impact of the Bill on such arrangements? To apply for carer's allowance or carer's benefit, will a person require vetting or is there some exclusion clause? The great majority of carer's allowances are paid in respect of an elderly person and some of those elderly persons would be physically vulnerable. Does the legislation impact on these arrangements, and if not, should it?
The answer is it does not. If one looks at the classic situations in which carer's allowance is paid, it is often paid, for example, to a mother or father who is caring for a child who has a serious disability. It could be paid to an individual who is caring for another individual, who may be elderly and unwell, and may be suffering from dementia. The person may be caring for an individual who is of any age who suffered some catastrophic injury. Effectively, these are private arrangements and often they are familial arrangements. There would be a number of persons in receipt of carer's allowance, for example, two elderly persons or an elderly couple - a husband and wife who are under the one roof - who are both pensioners where one or other of the parties is seriously unwell. He or she may be suffering from dementia and there may be other issues. It may be that one spouse is getting the half-carer's allowance to provide care for the other spouse at the same time as being in receipt of pension. These are arrangements that do not fall within the provisions of the legislation.
Speaking on a similar vein, there are home helps. There are tens of thousands working in a home-help type arrangement. As the Minister and Senators will be aware, ten or 15 years ago the home-help service was mostly informal. Now it has become much more formal where a minimum wage rate applies. Generally speaking, it would not be a familial relationship. Of course, there are cases where the home-help provider is providing a home-help service to two or three different persons on the same street, in the same townland or whatever.
Will certification or vetting be required for those who provide home help, which is generally processed through the HSE?
If home help is provided through an agency or the HSE and the person is working with a vulnerable adult or in contact with children there will be vetting. If I decided to recruit a home help on a private basis to cook my meals every evening, on the assumption I am neither a child nor a vulnerable adult vetting would have no particular role. It would be a private arrangement and not done through an organisation, a business or the HSE and so would fall outside the legislation. However, professional home help organisations providing care for vulnerable adults or children will have to be vetted under the legislation.
Question put and agreed to.
Sections 3 to 6, inclusive, agreed to.
SECTION 7
Amendments Nos. 3 and 4 are related and will be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 3:
In page 11, subsection (2)(b), line 9, after "concerned")" to insert the following:
". Any such request for information, shall be—
(i) accompanied by an explanation of the specific information being sought,
(ii) directly relevant to the employment or activity being applied for and any subsequent enquiries shall be proportionate and precise".
These amendments come on foot of representations, suggestions and recommendations made by the Irish Human Rights Commission and seek to have clauses inserted in the Bill which would require the bureau to specify the type of information it seeks when it makes representations to the Garda Síochána about persons subject to vetting applications. We seek clear guidance to be given on the duration for which criminal record information is retained and subject to disclosure, and whether the gathering of such information is proportionate and related to the activity about to be undertaken by the person. We want to prevent fishing exercises and information being used inappropriately. If the bureau seeks information on a particular individual it must relate to the area in which the person will be employed and the rights of the person being vetted must be upheld as well as those whom the Bill seeks to protect.
Unfortunately I am unable to accept amendment No. 3 for a number of reasons. It should be borne in mind that section 15 also provides that any specified information can only be disclosed where it is relevant and proportionate and where the rights of the person have been taken into account in a manner consistent with fairness and natural justice. The amendment would require unnecessary bureaucracy as it would require the vetting bureau to keep a written record of the reason it is conducting a search of the Garda PULSE database every time it does so. The amendment would require the Garda to know in advance whether a particular item of information is relevant to the employment or activity for which the person has applied. This is not possible. It is only when a garda checks the records with regard to an individual that he or she could possibly know whether any particular record is relevant. The amendment would also contradict the underlying principle of the Bill which provides it is the employer and not the vetting bureau which must assess the relevance of any criminal record information to the particular employment or activity in which the individual seeks to engage or be employed.
I am also unable to accept amendment No. 4 as it is unnecessary. The Data Protection Acts already apply to criminal records data and the specified information database. The vetting unit is registered with the Data Protection Commissioner in accordance with the Data Protection Acts, and its procedures for storing and accessing data are already subject to the oversight of the Data Protection Commissioner in accordance with this Act. The Data Protection Commissioner has also been fully consulted with regard to the provisions contained in the National Vetting Bureau (Children and Vulnerable Persons) Bill before the House.
I welcome the Minister's clarification on this issue and I take on board what he has said. Perhaps he will clarify what guidelines and procedures will be in place on a practical level with regard to the bureau. We have all seen instances of legislation which states bureaus or organisations should or should not do certain things, but when it comes into practice we find individuals in these organisations can seek more information than they are due. What intention does the Minister have on giving guidelines to the bureau on the type of information it can seek under the Bill? How will it be enforced by the Department? The points raised by the Irish Human Rights Commission are valid and therefore I ask the Minister to reconsider. Although this might be covered by other legislation or mentioned somewhere else in the Bill, to cover it here is no harm, to ensure absolute certainty. It would make very clear that it is the Minister's intention that information which is not specific should not be sought and that the ethos of the Data Protection Act is present in this legislation also.
A data protection code of practice for An Garda Síochána is already in place and will be applicable in these circumstances. I am conscious of the time available to us. The code of practice runs to in the region of 20 pages and I would be happy to read it into the record of the House but it would probably get us to the end of the allocated time for the debate. The Data Protection Commissioner is satisfied this matter is being dealt with appropriately and that the code of practice will be applicable, and there should be no concerns about the issues raised by the Senator.
Amendment put and declared lost.
I move amendment No. 4:
In page 11, subsection (2), between lines 26 and 27, to insert the following:
"(h) the periodic review of data so that it is not stored for an excessive length of time in light of the purpose for which it was gathered according to regulations set out by the Minister.".
Amendment put declared lost.
Section 7 agreed to.
Sections 8 to 11, inclusive, agreed to.
NEW SECTION
I move amendment No. 5:
In page 15, before section 12, but in Part 3, to insert the following new section:
"12.—Convictions deemed spent by a procedure prescribed by law shall not be disclosed by the National Vetting Bureau (Children and Vulnerable Persons) Database System.".
This amendment refers to spent convictions. We feel if somebody has gone through a procedure whereby a previous conviction has been ruled as spent the slate should be cleared for the person and this should be taken into consideration in recognition of his or her rights. Therefore it would be good to have clarification in the Bill on vetting procedures that spent convictions will not be brought into account. I am taking for granted, and I am possibly incorrect but I am sure the Minister will correct me if I am, that spent convictions legislation does not cover anything relating to child abuse. It would be difficult to have a spent conviction in such an area. People may fear excluding spent convictions, but this type of conviction cannot be classed as a spent conviction. On the principle of civil rights the fact a conviction is spent should be recognised and it should not be held against a person in this legislation.
I am still not quite sure of the purpose of the amendment. We are discussing the vetting of people who will be employed to look after children. The amendment does not specify that it excludes convictions for child abuse, paedophilia or anything of this nature. Perhaps I have misinterpreted the amendment. I am interested to hear the Minister's views on it. I agree with the overall principle of spent convictions. It is right that if somebody has served his or her sentence according to the law then he or she is free of any other charges.
In the context of this Bill, however, I am not sure that that should extend to convictions for child-related crimes. I am curious to know the Minister's view.
I am afraid that I am unable to accept the amendment. This is because, as I explained on Second Stage, the spent convictions Bill provides that where a people are applying for positions which give them access to children or vulnerable persons, they must disclose all convictions, including any convictions that could otherwise be deemed spent under the Bill. That policy is supported by the provisions in the Bill before the House today. 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, could still have a particular reference in regard to persons working with children or vulnerable adults. 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 other criteria are satisfied. However, that information might be relevant to a position of trust working with a vulnerable person. In those circumstances it could be inappropriate that such a conviction be excluded from information furnished pursuant to vetting.
Similarly, many road traffic convictions may become spent convictions. However, these may be relevant to a position working as a driver of a school bus or a public service vehicle for persons with disabilities. We live in a grey world where there are not absolute solutions to everything. I am anxious that people should have a second chance to get on in life. Where they have made some error in life, it is important that, if they do not re-offend, they are not burdened by convictions long ago that have no relevance to how they are conducting their lives today.
We have to be careful about some areas, however. For example, one can imagine the furore, concern and anger if, 15 years later, an individual who suffered a conviction for drunken driving, and the conviction was spent, was driving a school bus which crashed, a number of children lost their lives and it was discovered that the driver was drunk. We have to deal with the real world and its concerns. It may well be that if individuals are seeking that sort of job and disclose a conviction, they would be able to convince the prospective employer that they are a changed person and have no problems with alcohol. Then, at least, the employer takes responsibility, knows of the background and can make an informed judgment. However, there are circumstances in which, because of the greater need to provide protection for children or other vulnerable individuals, someone's record - that may be spent for other purposes - will be disclosed in a vetting process.
While I am probably saying this to the point of boredom, there is no monopoly of wisdom but there is a balance to be achieved. We think at this stage that this is the right balance. We have given very careful consideration to this matter. My initial reaction when we were preparing the legislation was that, once we were dealing with the spent convictions Bill, it is unfair to an individual whose conviction is spent that it should re-emerge in his or her life in particular circumstances. One must take the example of the crashed school bus or someone who in their early 20s was convicted of theft and is now, in their late 30s, minding a vulnerable adult and money starts disappearing. Would the family who employed that individual, and knew nothing about that record, not be entitled to be outraged and ask "Why didn't we know this person had a past?" We think that we have achieved the balance and we hope we have. The overriding and overarching principle is to provide protection to children and vulnerable adults. I cannot therefore accept the amendment the Senator has tabled.
To use the Minister's own logic against him, he argued that one cannot legislate for everything. I would imagine that the number of instances of crashed school buses by people who might have had a spent conviction is very small. Thankfully, we have only had a limited number of fatalities in crashed school buses. I would put the corollary to the Minister, which might be more common place. For example, people with a spent conviction might have had an alcohol problem in their early lives. They could have had alcohol rehabilitation and might have had a drink driving offence which then became a spent conviction. If they then applied for a job as a school bus driver - with the vetting procedures that are being suggested and if their spent convictions are all counted in - is there a possibility that they will not receive the vetting because in their spent convictions they had a charge of drunk driving? Therefore, they may be excluded from getting a job as a school bus driver. I contend that one could equally have a grey area on that side of the argument. That is why the Irish Human Rights Commission has argued that point. I agree with the Minister that there are grey areas, but I contend that the number of people who would be excluded because of the inclusion of spent convictions might increase more so than the incidence of accidents caused due to allowing one or two people through.
As the Minister said earlier, we cannot legislate for everything. There will be cases where things slip through the gaps and unforeseen things occur. I am afraid, however, that there is a contradiction between a spent conviction and this Bill, in that one is dragging up somebody's past. It may involve people who have made a genuine effort to rehabilitate themselves and get on with their lives. They are then told: "We've cleaned your slate and you've left that behind. You have repaid your debts and society is allowing you to move on." We have done the same with the Personal Insolvency Bill. The same principle applies in that regard where we draw a line in the sand so people can move on.
If this amendment is not accepted, however, it appears that we are saying: "We have buried the hatchet but we're going to put a flag where the hatchet is and go back and dig it up if we need it."
I have listened carefully to the debate because, like the Minister, at the beginning of this issue I would also have supported Senator Ó Clochartaigh. It is important, however, that organisations would know of such soft information. The Minister's words have been very useful. My difficulty is that a conviction, or even a spent conviction, is barring people from so many professions. I have a huge difficulty with that. For example, one cannot do courses in the social work and care professions if one has had a previous conviction, even if one has been rehabilitated. I understand what the Minister is saying about having the knowledge, but I do not think that all such avenues should be closed off for one's whole life because a person shoplifted once in his or her early 20s. It was wrong but if people took the punishment and were rehabilitated they should be allowed to go on. It is about striking the right balance. While it may not necessarily be relevant to this Bill, when we get back to dealing with spent convictions, there is an issue about how such people are treated by organisations and professions.
Does an tAire wish to comment?
Yes. This is a difficult area and there is no monopoly of wisdom. My concern is exactly as articulated by Senators Ó Clochartaigh and van Turnhout, which is where individuals have got on with their lives and put their past behind them, it seems extremely unfair that some 20 years later the past might catch up with them. Of course that is a concern. On the other hand, however, we are trying to ensure as much protection as possible for children and vulnerable adults, so one would need the wisdom of Solomon to square this circle. At the end of the day, one has to make a judgment and we have done so. The fact that there is a conviction from 15 or 20 years earlier in one's life does not necessarily exclude a person from a particular position. It can be the judgment of those who are advertising the position that a person should be given the post.
For example, we would all know of some individuals who are doing extraordinarily valuable youth work in this country, but who may have had difficult teenage years. We all know of individuals who have been alcoholics or have been addicted to gambling, but who are now working in centres for individuals who suffer from those addictions. In fact, some of the best people working in those areas have gone through that trouble in their own lives and came out the other side. The very insight that has given them has meant that the work they are now doing is very valuable. They are not necessarily individuals who were ever convicted of anything.
However, in the youth area, I note some youth workers certainly were convicted during their teenage years. I refer to their experience in life, their changed personality and present position and note the irony is the fact they went through those difficulties has assisted them in getting these jobs. In this case, the convictions have not been the obstacle but in fact indicated a level of trouble, out of which they built, and that they now really have something to offer in, because they understand kids who are in that position today. Consequently, I cannot accept the Senator's amendment. However, I do not pretend this is an easy issue, as it is not and I have no doubt we will return to debate it further on the Criminal Justice (Spent Convictions) Bill.
Is Senator Ó Clochartaigh pressing the amendment?
Amendment put and declared lost.
SECTION 12
Question proposed: "That section 12 stand part of the Bill."
I seek clarification in respect of section 12(5), which states, "This section shall not apply to any employment, contract, permission or placement referred to ... that commenced or was entered into ... before the commencement of this section". I looked at that section and then read paragraphs (a), (b) and (c) of section 21(1), which refers to retrospective vetting. I believe these provisions contradict each other and I seek clarification to try to understand. I lack the Minister's legal expertise but a few people have asked me this question about the apparent contradiction within the Bill. I note section 21(1) goes on to state "where the person concerned has not previously been the subject of an application for vetting disclosure under this Act, not later than such period as may be prescribed, make an application for vetting disclosure ... in respect of that person". Consequently, it appears as though one part or the Bill states they are not. While I am absolutely sure the Minister can give me an answer to try to explain, I have read the provisions several times and believe they contradict each other.
I will attempt to provide some clarity. While I cannot guarantee I will, I will do my best. Effectively, when the Bill comes into force, anyone who already is a party to an employment contract, permission or placement can continue in the position he or she is in. The club or organisation or whatever that employed him or her is not committing an illegality under the legislation by retaining him or her. Moreover, it is not instantly compelled to have him or her vetted because quite clearly, when this Bill comes into operation, a range of people will fall into that particular position. However, I am also providing for retrospective vetting where people are in particular employments. One can require, by ministerial order, that over a period of time to be prescribed, vetting can take place. Consequently, although there is no illegality in keeping them in place for the period following the legislation coming into operation, there are areas in which people currently are working who may not have been vetted at any point in time. These areas will be examined and it will be possible, by ministerial order, to bring them into a vetting process and require that within a defined period, such people be vetted. There is a balance in this regard and these are complementary provisions. This is the explanation of how this should work in practice.
I thank the Minister for that clarification. My difficulty is that were I an employee, under section 12, I could claim that vetting does not apply to me. If one then puts in place retrospective vetting, it is about the organisation but as an employee, could I refuse to be vetted? I refer to the position into which that could put an organisation.
The answer to that is one could not, because the organisation will be under an obligation to have an individual vetted. However, section 21(4) may shed a little light on this matter. It states "This Part (other than section 12) shall, with any necessary modifications, apply to an application for retrospective vetting disclosure as it applies to an application for vetting disclosure under section 13 ". That is the provision that reconciles the connectivity between the two in the manner in which I described it.
Progress reported; Committee to sit again.