This meeting has been convened to consider the National Vetting Bureau (Children and Vulnerable Persons) Bill 2012. I welcome the Minister and his officials to this meeting. A grouping list has been circulated. I understand the Minister will be taking Topical Issues in the Chamber.
National Vetting Bureau (Children and Vulnerable Persons) Bill 2012: Committee Stage
Deputy Collins will be raising the topical issue with me.
If consideration of the Bill is not concluded, is it agreed to suspend the meeting from 3.45 p.m. to 4.30 p.m. to allow that to happen? Agreed.
I request members to switch off mobile phones as it is not good enough to have them on silent mode as this will cause interference with the recording system .
Section 1 agreed to.
SECTION 2
Amendment Nos. 1 and 2 are related and will be discussed together.
I move amendment No. 1:
In page 6, between lines 30 and 31, to insert the following:
“ “criminal offence” includes an offence under the law of a state other than the State that corresponds to an offence under the law of the State, where the act or omission constituting the offence under the law of the other state would, if committed in the State, constitute an offence under the law of the State;”.
The purpose of these amendments is to make it clear that the record of offences, convictions or prosecutions pending, which will be disclosed in accordance with the provisions of the Bill, will include details of convictions or prosecutions pending, arising from offences committed in another state. As I indicated on Second Stage, I will be bringing forward a separate Bill, the criminal records information system Bill, which will provide for enhanced co-operation in exchanging criminal records information with other states. The scheme of that Bill was published earlier this year. I expect to publish the Bill in final form in 2013. This will implement an EU member states agreement in regard to the exchange of criminal records data between EU states and will also provide for the exchange of criminal records information with states outside the European Union.
Amendment agreed to.
I move amendment No. 2:
In page 6, to delete lines 31 to 37 and substitute the following:
" "criminal record", in relation to a person, means--
(a) a record of the person’s convictions, whether within or outside the State, for any criminal offences, together with any ancillary or consequential orders made pursuant to the convictions concerned, or
(b) a record of any prosecutions pending against the person, whether within or outside the State, for any criminal offence,
or both;".
Amendment agreed to.
Amendments Nos. 3, 4 and 20 are related and may be discussed together.
I move amendment No. 3:
In page 7, paragraph (a), between lines 43 and 44, 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 appreciate that this amendment would place a large demand on the services of the national vetting bureau once it is established on a statutory basis. We are all moving in the same direction in terms of trying to enhance child protection. Under this amendment, any person in contractual childminding employment inside or outside the home, for example, as a nanny or au pair, should be vetted at some point. Given the fact that this would place a sizeable workload on the bureau, perhaps the Minister could consider phasing it in over a number of years. It is an aspect on which we believe a slight deficiency in the legislation creates exposure.
May I contribute on the other amendments?
Yes.
Amendments Nos. 3 and 20 are similar. Amendment No. 4's purpose is to prescribe babysitting as not being under the remit of this legislation. I am referring to people providing a babysitting service on a casual basis once per week, per fortnight or per month.
While I understand the intent behind the Deputy's amendments, I am unable to accept them. If accepted, they would contravene the provisions in the Bill that exempt private arrangements from vetting. Furthermore, these amendments would require the vetting of persons who provide any level of childminding for any period. This is not practical.
As the Deputy may know, the Child Care (Pre-School Services) Regulations 2006 already require vetting for all persons working in child care facilities that provide a service for three or more children. The national vetting bureau 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 that it employees to provide such services.
However, the "relevant organisations" definition contained in the Bill very deliberately excludes private arrangements made by parents to have their children minded outside of regulated child care services. This is for a number of reasons, but principally two. First, it is not practical or feasible for the State to seek to police all private childminding arrangements. For example, if a parent chooses a grandparent, in-law, neighbour, nanny, au pair, sibling or family friend to mind his or her child regardless of whether that person is paid, the parent is free to make child care arrangements that are appropriate to his or her circumstance. Second, it is not the intention to criminalise parents for making such arrangements. Therefore, it is not feasible to require vetting disclosures in respect of such private arrangements.
Amendment put and declared lost.
I move amendment No. 4:
In page 7, line 44, after "include" to insert "baby-sitting and or".
Amendment put and declared lost.
I move amendment No. 5:
In page 8, lines 24 to 26, to delete all words from and including "means" in line 24 down to and including “Bureau” in line 26 and substitute the following:
"means information concerning a finding or allegation of harm to another person that is received by the Bureau".
The amendment will provide that specified information may arise from a finding or allegation that a person caused harm to another person rather than just a child or a vulnerable person. This is to allow for the fact that a sexual offence or assault where the victim is an adult rather than a child or vulnerable person could also provide a bone fide concern that the person may harm a child or vulnerable person. This is a commonsensical and important amendment to the Bill and I hope it will be supported by members of the committee.
Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."
I wish to draw members' attention to a matter. It would be appropriate to do so here or, indeed, further on in respect of another section. This section refers to the bureau being the national vetting bureau of the Garda Síochána under the existing Garda Síochána Acts. It would be possible for the vetting bureau to produce an annual report as opposed to its report simply being subsumed within the Garda annual report, but it is my intention on Report Stage to introduce an amendment to the Bill to provide for the Garda vetting bureau to publish an annual report to be furnished directly to the Garda Commissioner and then furnished on to the Minister to be laid before both Houses of the Oireachtas.
It is important 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. I hope to bring this amendment before the House on Report Stage. I hope Members will see the benefit of it. It is important we have transparency as to how the bureau is operating into the future and that there is a direct reporting function. If members of this or future Oireachtas justice committees wish to get an overview of the bureau and its workings, the amendment would give rise to the result of the report being laid before their committees for consideration and comment. It would give an annual, dynamic oversight that I believe would be useful.
Question put and agreed to.
SECTION 3
Question proposed: "That section 3 stand part of the Bill."
Committee members have received a great deal of correspondence from sports clubs. I understand this section deals with those groups and other individuals exempted from the legislation. Voluntary sporting organisations have concerns regarding voluntary coaches, the current delays in vetting and the impact that the Bill may have on fielding teams.
Another concern relates to mixed teams, for example, people who are under 18 years of age playing with people who are over that age, and whether adults on such teams need to be vetted. Will the Minister shine some light on these genuine concerns?
On the same issue, a number of us have received e-mails from the FAI. I am sure the concern also applies to other sporting bodies. As Deputy Phelan stated, delays pose an issue. The bodies are concerned that, with their new seasons starting, delays of up to three months in vetting people who work with those under 18 years of age will cause problems. Will players who are over 18 years of age and who are mentoring or coaching younger players need to be vetted? These issues were raised with the Department.
It is the FAI's understanding that leagues, divisional associations and the FAI cannot be held liable for a failure by a club to comply with the legislation and that, equally, a club cannot be responsible for any failure of any of its parent bodies. As the majority of clubs and leagues are not separate legal entities but are separately run organisations, they need clarification on this matter.
I note that these points were raised with the Minister's office. It is a matter of concern for all sports associations.
I draw the Deputy's attention to Schedule 1, Part 1, paragraph 5, which states:
Any work or activity which consists of the provision of educational, training, cultural, recreational, leisure, social or physical activities (whether or not for commercial or any other consideration) to children unless the provision of educational, training, cultural, recreational, leisure, social or physical activities is merely incidental to the provision of educational, training, cultural, recreational, leisure, social or physical activities to persons who are not children.
This is relevant to work or activities relating to children. In a nutshell, where an adult, as part of a team, is playing soccer, Gaelic or any other sport with children under 18 years of age, that of itself does not require that he or she be vetted because he or she is playing as part of a team and not acting in a coaching capacity. Using the phraseology above, if on the field the person aged over 18 years is the captain of the team and telling a 17 year old to do something, that is incidental to the activity.
What if he or she is acting in a coaching capacity?
If the person is not the permanent coach of a team, it is incidental activity. This would not be relevant to, say, me, playing soccer with a group of 17 year olds and explaining to someone on the pitch how to take a free kick. That is not the type of coaching envisaged. However, if I was coaching a soccer or Gaelic football team, I would have to be vetted.
On the question of responsibility for compliance with the legislation, it rests with the individual club or organisation rather than the overall governing body. Equally, if the FAI as a governing body was to employ a coach for the Republic of Ireland under 16 soccer team, it would have to ensure the appropriate vetting was undertaken of that coach. On the assumption that the under 16 year olds would come from a variety of clubs playing schoolboy league football, the individual clubs would not be held responsible for the failure of the FAI in these circumstances. The requirement in this area is reasonably straightforward. We do our best to respond to queries about the legislation. I will try to ensure outstanding queries from particular sports organisations are addressed and responded to in a reasonable way in order that there is no confusion. An important aspect of the legislation is to ensure people, including clubs and sports organisations, are informed as to how it is intended to work and will work, when enacted.
Perhaps the Minister might address my other question on clubs having to prevent volunteers engaging for up to 12 weeks pending the return of their vetting forms.
On the timeframe issue, when the Government took office on 9 March 2011, the average waiting time for the processing of vetting applications was about 14 weeks. We have arranged for the appointment of new permanent staff to the vetting bureau. Some temporary staff were working in the bureau under the JobBridge scheme put in place by the Minister for Social Protection. While waiting times in respect of vetting had been reduced to two weeks, the August and September are particularly demanding months for the bureau. The current timeframe is between six and eight weeks. We are conscious that when the legislation is enacted, there will be additional demands on the bureau and are considering the provision of additional staff for it in the context of the Croke Park agreement, under which many good things have been achieved. Also under consideration is the transfer from other parts of the public service of individuals to the bureau. These staff will need to undergo necessary and appropriate training. We have established an office in Ennis under the management of the bureau which includes some former staff of the Department of Agriculture, Food and the Marine. We are reviewing the process.
By way of clarification, how will the meaning of the term "on an occasional basis" be determined?
If someone is asked to look after a soccer, cricket, Gaelic or camogie team for one day, no issue arises. The legislation envisages that someone might be briefly involved in this regard. During the Second Stage debate I made reference to a school sports day, on which parents help out once a year. There would be no requirement to have the parents of half of the school's pupils vetted. There are common-sense provisions in the Bill to ensure that where vetting is genuinely required, it is undertaken, but where there is brief informal involvement of an individual and not regular engagement, vetting is not necessary.
I acknowledge that the Minister is trying to get the balance right rather than choke the life out of all these organisations with regulation. During the Second Stage debate I referred to the exemptions provided under the Bill in respect of persons who help out on an occasional basis. There could potentially be situations where people undertaking maintenance works or cleaning in clubs and organisations would be circulating in communal or dressing room areas. Is the legislation tight enough in this respect? While such persons might come under the umbrella of an exemption, by virtue of the examples given, they could come in contact with children.
Section 3(1) states:
This Act shall not apply to any one of the following, namely:
(a) any relevant work or activities undertaken in the course of a family relationship;
We all know what this means. The section continues:
(b) any relevant work or activities undertaken—
(i) in the course of a personal relationship, and
(ii) for no commercial consideration;
(c) the giving of assistance by an individual—
(i) on an occasional basis, and
(ii) for no commercial consideration,
at a school, sports or community event or activity, other than where such assistance includes the coaching, mentoring, counselling, teaching or training of children or vulnerable persons.
Paragraph (c) covers the point I was making about once-off assistance with a soccer or Gaelic team or on a sports day. The final part of the paragraph where it states "at a school, sports or community event or activity, other than where such assistance includes the coaching, mentoring, counselling, teaching or training of children or vulnerable persons" relates to regular coaching or training. In the context of the legislation, the general approach taken is that individuals working "regularly" with children or vulnerable adults are required to be vetted.
That includes janitors and so on.
Yes, it includes the school caretaker, etc. These are all persons in contact with children or vulnerable adults on a regular basis.
Are occasional volunteers or helpers in clubs covered?
Yes, by section 3(1)(c).
I have one other question for the Minister. The Bill covers issues such as coaching, training, mentoring, counselling and teaching. What about persons such as parents and so on who transport children from one pitch to another or to and from a match in their car? Often a child can end up on his or her own in the car with that person. Where a teacher is required to take a child who is ill home, often two teachers will travel in order to protect themselves and the child.
Areas such as this are not mentioned and I wonder if consideration should be given to alerting clubs, organisations and schools of this.
The difference is between what I would describe as public and private arrangements. It would not be remotely practical for a parent giving a child or some children a lift to have to be vetted. Where there is a commercial arrangement, involving the school bus driver or a bus hired by a team on a weekly basis to take a team of 14-year-olds or 15-year-olds somewhere, for example, it would fall under the Bill. It is detailed in paragraph (8) of Part 1 of Schedule 1: "Work as a driver of a public service vehicle which is being used only for the purpose of conveying children." A driver in that position must of course be vetted.
We are trying to allow people get on with their ordinary lives but for public service vehicles or commercial operations, individuals regularly in contact with children must be vetted. In our constituencies there are many different sports teams with parents involved. Parents who are coaches of such teams must be vetted. I am sure that where sons and daughters of the members have been on teams, many of us have gone to look at a game and we would pick up a couple of their friends on the way. Often, parents may alternate this practice if they do not watch every match. It would be impossible to provide for vetting in those circumstances, and it would be a gross invasion of individual privacy, as well as family and friend relationships. It would impose a burden on the vetting bureau that would be impossible, and we could end up in a position in which large portions of the population which provide temporary assistance with family sporting arrangements would have to go through a vetting process. Even worse, these people would be criminalised if they did not go through the process. We must be very careful in achieving a balance. We believe this legislation has achieved that, although I like to say that in these cases nobody has a monopoly of wisdom. We have tried to separate the private and practical from the regular commercial profession.
Question put and agreed to.
Sections 4 and 5 agreed to.
SECTION 6
I move amendment No. 6:
In page 10, subsection (1), lines 19 and 20, to delete all words from and including "establish," in line 19 down to and including "Part" in line 20 and substitute the following:
"cause to be established and maintained in accordance with this Part,".
This is a minor technical amendment to make it clear that the bureau will not just establish but also maintain the database. It makes the wording of the section consistent with section 10(1), which provides for the establishment of the register of specified information.
Amendment agreed to.
I move amendment No. 7:
In page 10, between lines 29 and 30, to insert the following subsection:
"(4) The Chief Bureau Officer shall ensure that the manner in which the National Vetting Bureau stores, reproduces and accesses information is agreed with the Data Protection Commissioner at the outset and on an on-going basis.".
The amendment is self-explanatory and I hope to add a provision whereby it will be the responsibility of the chief bureau officer to ensure, particularly with regard to the concerns of human rights organisations, that the Data Protection Commissioner would work with him or her at the outset and on an ongoing basis.
Unfortunately I am unable to accept this amendment as it is unnecessary. The Data Protection Acts already apply both 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 that Act. The Data Protection Commissioner has also been fully consulted on the provisions contained in the Bill before the committee and has not raised any issue of concern.
Amendment, by leave, withdrawn.
Question proposed, "That section 6, as amended, stand part of the Bill."
Although we must finalise it with the Attorney General, the reference I made previously to the annual report with regard to the functions of the bureau is likely to be addressed in section 7. Perhaps I should have waited until we got there.
Question put and agreed to.
Section 7 agreed to.
SECTION 8
I move amendment No. 8:
In page 11, subsection (3), line 30, after "commencement" to insert the following:
"and following an assessment by the Chief Bureau Officer of that organisation’s compliance with the criteria set out under the legislation".
The Irish Human Rights Commission made the observation in its original analysis that there seems to be an automatic registering of the existing organisations in the transition. There was an idea, amounting to a bit of work, that the chief bureau officer would ensure that the organisations would comply with the new legislation.
The amendment is neither necessary nor practical and for that reason I am unable to accept it. It would create an obligation on the chief bureau officer to formally assess approximately 18,000 organisations that are already registered with the bureau and that are considered compliant with the criteria set out in the legislation we are discussing. It would also go against the purpose of the section, which is to ensure that existing registered organisations can be deemed to be registered without having to resubmit an application to register. In the event that a small number of organisations are found not to be compliant, the bureau can refuse to provide them with a vetting service until such time as they become compliant. Non-compliant organisations are also open to prosecution under the Bill, although this does not apply currently. Subsection (7) provides that the bureau may remove an entry relating to an organisation registered if there is an opinion that the organisation is not or is no longer a relevant organisation as defined by the Bill.
Why would organisations have to re-register? That is not specified in the amendment. This is an observation from the Irish Human Rights Commission. The intent of the amendment is that the staff would trawl through what is there to ensure bodies comply with the legislation. What the Minister outlined would suggest that could be fairly straightforward.
In effect, the Deputy is suggesting what is close to a re-registration process. The amendment proposes that the chief bureau officer conduct an assessment of every one of the 18,000 organisations already registered. If they are registered and compliant with the provisions of the Bill, there is no purpose in such an act. We must ensure there can be a seamless transition from what is a non-statutory body to a statutory body without creating an enormous backlog. To ask that the chief bureau officer reassess organisations that have already been registered and deemed compliant by virtue of the information furnished to the bureau means it would take many months to complete the reassessment of 18,000 organisations that are already properly functioning under what I describe as non-statutory vetting procedures. There is no practical prospect of dealing with it that way. We must ensure we do not extend what is currently a six- to eight-week delay in processing vetting applications. We want to bring that back to two or three weeks from the application.
We could turn it into a four to five month delay because I do not have an unlimited number of staff to do the work. One could not expect the chief vetting bureau officer, on his or her own, to reassess 18,000 organisations. The figure has built up over a considerable number of years and covers the work done by the bureau at present. An organisation is required to register because it will undertake certain functions relating to children or vulnerable adults. Having registered, it is obliged to have new employees vetted. It is only when an application to vet is made and something arises that grabs the attention of the individual dealing with the application at the bureau that it becomes apparent if its falls outside the ambit of the legislation. Nothing could be achieved by the amendment. Frankly, the human rights commission was wrong to suggest it was necessary to table such an amendment. The amendment would also be completely impractical in the context of current resource issues and the need to ensure that when the legislation is being operated, the focus will be on using the powers granted by it - in terms of using hard and soft information - and ensuring when vetting is undertaken, it is done with reasonable speed and care.
I am happy to withdraw my amendment if the Minister's answer is what I hope for. Is he satisfied that the 18,000 organisations registered, based on the criteria used heretofore, will satisfy the new criteria?
I am satisfied that the organisations registered have been properly registered by the vetting bureau. I cannot predict whether some organisation may do something incorrectly in the future or if it will fall outside the ambit of the legislation. For example, an organisation could be registered and cease to be engaged in dealing with issues relating to children or vulnerable adults. Organisations may evolve or change what they do. Following the advice I have been given, I am satisfied that this is the correct way to deal with the issue. We are doing what we can to ensure the transition from a non-statutory to a statutory agency can be reasonably achieved and we can deal with the extra demand that will be placed on the bureau.
Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9
Amendments Nos. 9 to 14, inclusive, are related and may be discussed together. Amendment No. 10 is an alternative to amendment No. 9; amendment No. 12 is an alternative to amendment No. 11 and amendment No. 14 is an alternative to amendment No. 13.
I move amendment No. 9:
In page 12, lines 36 to 43 and in page 13, lines 1 to 5, to delete subsection (3) and substitute the following:
“(3) A nomination referred to subsection (1) shall be in such form as may be specified by the Bureau and shall include the following information in respect of the person nominated:
(a) his or her name and, where he or she also uses one or more other names, each of those names;
(b) in a case where he or she has a former name, including where appropriate, a maiden name, that name or each of them, as the case may be; (c) his or her gender;
(d) his or her mother’s maiden name;
(e) his or her address;
(f) his or her previous addresses (if any);
(g) his or her date of birth;
(h) his or her place of birth;
(i) his or her Passport Number (if available);
(j) in a case where he or she has a criminal record, particulars of such record;
(k) such other information as the Bureau may reasonably require for the performance of its functions under this Act.”.
In these amendments I am providing that vetting applicants will be required to provide details of the following: their place of birth, gender, any criminal convictions and other names that they may have used to describe themselves. I propose the amendments to provide for greater clarity in the Bill regarding the information persons applying for positions should provide. All of this information is currently required in the existing vetting process. It is important to require persons to provide details of convictions, gender and other names used such as an alias or a previous name in order that the bureau can satisfactorily verify the identity of the person and the information on record before disclosure.
Amendments Nos. 10, 12 and 14 provide for the recording of the place of birth of the vetting applicant and his or her nationality. They are alternatives to the amendments I have tabled. I do not propose to make specific provision for the recording of nationality because I consider that place of birth and passport number provide sufficient precise information on the identity of a person seeking to be vetted.
It is important to include details of nationality and I shall outline my reasons when discussing later amendments. I have a significant concern about those who are being vetted and want the provision to apply to Irish citizens and citizens from other countries. There is a view that the Garda or the National Vetting Bureau should have the capacity to seek relevant information from other international police services. That is the reason my amendment includes the term "nationality". Obviously, I support the Minister's amendments, but I ask him to consider mine on that basis.
Anyone in the State seeking to work with children or vulnerable adults in the circumstances detailed in the Bill must be vetted. The committee will discuss the Deputy's amendment later which includes the word "nationality". I am advised that it is not necessary to include it, but I will give the matter further thought before Report Stage, although it is not something the vetting bureau states it requires and the question does not need to be answered on the application form. I do not see the provision of additional information creating a major difficulty. On the basis that applicants must truthfully provide information, one assumes that if they were asked for their nationality, they would answer truthfully. I will, therefore, give more thought to the issue. We shall deal with a related amendment later and I will say something more on the issue then. Perhaps the Deputy might allow me and my Department to examine it further between now and Report Stage.
I am satisfied with the Minister's reply.
I remind members that amendments Nos. 9 to 14, inclusive, are being discussed together. Therefore, we cannot discuss them later. If they have a comment to make on them, they should make it now before we move on.
Amendment No. 9, in section (3)(k), states: "such other information as the Bureau may reasonably require for the performance of its functions under this Act”. What does the Minister envisage is included in this provision? Is he referring to fingerprints or DNA information?
It may well be that the bureau is asked to vet someone but needs additional information which may well be distinguishing information. Three people could share the same name and the bureau would need to ask questions to seek clarification. For example, there might be a criminal record on the PULSE system and let us assume a popular name is John Murphy. There may be ten men by the name of John Murphy, one of whom wishes to be vetted. Inquiries might need to be made to ensure information is not given on the wrong individual. We are giving the vetting bureau discretion to raise issues in particular cases, but I can envisage more complex matters arising. For example, there is a degree of co-operation with police forces outside Ireland. I do not want to steal Deputy Pádraig Mac Lochlainn's thunder on his amendment that we will reach shortly, but a foreign police force might request a fingerprint or DNA sample because it wants to ensure it is providing us with information on the right individual. We do not want to create a situation where anyone being vetted must automatically be fingerprinted and provide a DNA sample. Discretion is given to the vetting bureau to ensure accuracy and address circumstances that will not apply to the overwhelming majority of persons who require to be vetted but may apply to some.
Has consideration been given to the need for the provision of photographs for vetting purposes?
That issue could fall under the same heading.
Will the Minister consider amendments Nos. 10, 12 and 14 in my name on Report Stage?
With regard to including the term "nationality", we have not yet discussed amendment No. 14. Are we discussing it in this group of amendments?
We are discussing it now.
I shall respond formally to it.
The effect of amendment No. 14 would be to require the bureau to make inquiries of police forces in other states.
That is amendment No. 15.
I am sorry. I was looking at amendment No. 15 to section14. We have dealt with amendments Nos. 10, 12 and 14.
Amendment agreed to.
Amendment No. 10 not moved.
Section 9, as amended, agreed to.
Section 10 agreed to.
SECTION 11
I move amendment No. 11:
In page 14, lines 1 to 20, to delete subsection (2) and substitute the following:
“(2) The register of vetted persons shall contain the following information in respect of each vetted person:
(a) his or her name and, where he or she also uses one or more other names, each of those names;
(b) in a case where he or she has a former name, including where appropriate, a maiden name, that name or each of them, as the case may be;
(c) his or her gender;
(d) his or her mother’s maiden name;
(e) his or her address;
(f) his or her previous addresses (if any);
(g) his or her date of birth;
(h) his or her place of birth;
(i) his or her Passport Number (if available);
(j) his or her personal identification number (if any);
(k) the date of application for vetting disclosure and the outcome of the application;
(l) the name and particulars of the relevant organisation making the application for vetting disclosure;
(m) the relevant work or activity, and relevant organisation (if different from the relevant organisation making the application for vetting disclosure), to which the application relates;
(n) a declaration of consent referred to in section 13(4)(e);
(o) particulars of the vetting disclosures made in respect of the vetted person;
(p) such other information as the Bureau may reasonably require for the performance of its functions under this Act.”.
Amendment No. 12 not moved.
Amendment agreed to.
Section 11, as amended, agreed to.
Section 12 agreed to.
SECTION 13
I move amendment No. 13:
In page 16, lines 10 to 22, to delete subsection (5) and substitute the following:
“(5) The following information is specified for the purposes of subsection (4)(b) in relation to a person in respect of whom an application for vetting disclosure is made:
(a) his or her name and, where he or she also uses one or more other names, each of those names;
(b) in a case where he or she has a former name, including where appropriate, a maiden name, that name or each of them, as the case may be;
(c) his or her gender;
(d) his or her mother’s maiden name;
(e) his or her address;
(f) his or her previous addresses (if any);
(g) his or her date of birth;
(h) his or her place of birth;
(i) his or her Passport Number (if available);
(j) his or her personal identification number (if any);
(k) in a case where he or she has a criminal record, particulars of such record;
(l) such other information as the Bureau may reasonably require for the performance of its functions under this Act.”.
Amendment agreed to.
Amendment No. 14 not moved.
Section 13, as amended, agreed to.
SECTION 14
I move amendment No. 15:
In page 16, subsection (1)(a), line 33, after “Síochána” to insert “or other police services internationally”.
As I pointed out, the objective of the amendment is to allow the national vetting bureau not only seek to information from An Garda Síochána but also from other police services internationally. The amendment would be in the public interest. Concerns were expressed about this issue during the consultation phase on the Bill. There have been examples at European level of citizens who had significant criminal histories in their home countries going on to commit grievous crimes in other states. There is considerable public concern about this and the purpose of the amendment is to deal with it.
This is an interesting amendment. In practical terms, the Garda has informal relationships with a variety of police forces around the world for vetting purposes. We cannot compel the police force of any other country to co-operate with us, but a number do. If we receive similar requests, we also co-operate. The Deputy is seeking to amend the section to provide expressly for something that already happens in practice. I am advised that the amendment is not necessary. If the bureau is asked to vet an individual and knows he or she has been working outside Ireland or that information is given, it does not need express authority to seek the assistance of other police forces because it can already do this. There is no prohibition on it doing so and, of course, it happens in practice. My advice is that it is unnecessary, therefore, to insert the proposed wording in the legislation.
Let us say, for example, an individual has been resident in Ireland for ten years. That person is vetted and there is no difficulty during his or her time in Ireland, but he or she came here from a far flung country, not necessarily in the European Union from where we receive a great deal of co-operation but, for example, somewhere in South America. I do not want to create an obligation whereby before the Garda gives a response to a vetting application, it must communicate with and obtain a response from a police force in South America. One might find, first, that one will not receive a reply and the whole thing could become gridlocked, or one might receive a response that is completely inaccurate and could create a problem. I am anxious to ensure we do not create a perception in the legislation that we have the capacity to obtain accurate information from any country in the world. Of course, we can receive information from certain police organisations, whether it be Northern Ireland with which we have significant co-operation or one of the international police organisations in certain circumstances.
I will seek a further view from the Attorney General on the amendment. I have to be careful not to include something in the legislation that either could give rise to a perception that the impossible can be done or that does not create a barrier for individuals who have lived in this country for many years but who have a foreign nationality or have become Irish citizens in recent years. They might have lived, for example, in Sri Lanka, Pakistan or India, in the early years of their life and there might be difficulties in obtaining information from there. This could block them from gaining reasonable employment which they are perfectly suitable to obtain. Perhaps the Deputy might let us give further thought to this amendment before revisiting it on Report Stage.
I appreciate the Minister's offer to seek advice from the Attorney General. On the basis of what he said, that is logical. However, one can understand the concern. Irish, British or citizens of many other European states and so forth can be checked by the Garda, but there is a fear that there might be a vacuum in security otherwise. The Minister has pointed out that this could discriminate against an applicant and, in most cases, it probably would. However, that fear is about the one or two exceptional cases where the state from which they come happens to be unco-operative or inefficient in its response times. That is a challenge.
This is a very interesting issue. In passing legislation such as this we must always err on the side of caution in respect of children who might be in the care of persons from other jurisdictions where it might not be possible to obtain accurate or reliable information from the relevant state authorities. In these situations it is wise and prudent to err on the side of caution by not vetting them. The onus must be on the applicant sponsoring body to ensure it is in a position to put forward people who can provide reliable information from their home jurisdiction. We live in a global village and there have been instances in the past, perhaps not involving child welfare issues, where people in this country from other jurisdictions had serious criminal records which the State, regrettably, discovered only at a later date, at some cost to citizens of the State. We should, therefore, err entirely on the side of caution, particularly when it comes to children.
I agree that we must adopt a precautionary principle. There is no doubt that the State, like every other state, has had the experience of individuals coming here with significant criminal records, some of them horrific, who have perpetrated horrendous crimes, including rape and murder, in this country. We are all aware of a number of cases in which that has occurred. However, in the context of the practical work the vetting bureau has undertaken so far, there has not been an example of which I am aware of a circumstance in which somebody who originally had a foreign residence but has been living in this country for many years has been vetted and deemed suitable for a position was subsequently proved not only to be unsuitable but to have a concealed foreign criminal record.
We must be careful to ensure what we are doing has a degree of common sense, is proportionate and balanced and that we do not create a situation where an individual who is lawfully resident in the State and well qualified to undertake work with children and vulnerable adults in circumstances where there are not many others with similar qualifications who are interested in doing such work, faces barriers that are unfair and possibly contrary to public interest. We are conscious of this.
I referred to the European Union. I will be bringing forward a separate Bill, the criminal records (information systems) Bill, that will provide for enhanced cooperation in exchanging criminal record information with other states. The scheme of the Bill was published earlier this year and I expect the Bill to be published in 2013. This will implement an EU member state agreement on the exchange of criminal records data between EU states. It will also provide for the exchange of criminal record information with states outside the European Union, allowing us to enter into formal agreements with non-EU states.
Following the introduction of that legislation, the information available to the vetting bureau for vetting purposes will be greatly expanded and it will, in the context of other EU member states meeting their obligations, provide for speedier responses than one gets from certain states at present when queries are made for vetting purposes.
I am conscious of the importance of this area. It is worthwhile discussing it and if Deputy Mac Lochlainn would allow us to get further advice from the Attorney General's office on the amendment, we could return to it on Report Stage. I cannot say for certain that we will adopt the amendment but I am happy to give it additional consideration.
I am a bit of a green horn so I must ask about this. The Minister said he will give further consideration to the issues raised in amendments Nos. 10, 12 and 14. How does that work for Report Stage?
Anything discussed here can be brought forward on Report Stage.
The Deputy can resubmit any amendments we have not voted on and if we agree with the Deputy's amendment on Committee Stage, we will bring forward a similar amendment on Report Stage. I do not mind whose amendment we use if we get advice from the Attorney General that we are not creating any unintended consequences.
Amendment, by leave, withdrawn.
Question proposed: "That section 14 stand part of the Bill."
In section 14, it is stated that the bureau, when it receives an application, shall make the inquiries of the Garda Síochána as it deems necessary to establish if there is a criminal record or specified information about the person. Was any thought given to that happening in reverse, where if the Garda Síochána becomes aware of someone who committed an offence or about whom it is concerned, it might alert the bureau to that fact so the bureau could amend its records accordingly?
The bureau will access the PULSE system on which convictions or pending prosecutions are recorded. In effect, gardaí record the information and there is no reason for the vetting bureau to access it unless a vetting request is submitted for someone who has applied for a post involving children or vulnerable adults.
I am bringing this up because it involves the issue of portability of information. If someone already has clearance in an area, it might be important the organisation he or she is working with is made aware of Garda concerns through the vetting bureau. Would it be possible to examine that before Report Stage?
The suggestion is that if someone has been vetted, deemed suitable and given employment, should something emerge later on that indicates unsuitability, the vetting bureau would report that to the employer or sporting organisation. I would ask for the opportunity to consider that. There may be difficulties as a result in the sense that we could not have a situation where if an incident occurred and gardaí were merely investigating it, they would furnish a series of possible suspects to the vetting bureau where those people could all be entirely innocent.
There are human rights issues involved also. Vetting as envisaged under the legislation is vetting of the individual at the time the vetting is undertaken. It could be a logistical nightmare to have rolling vetting and any issue that subsequently arose about an individual would be the subject of further additional information.
Putting this in the context of other legislation, if someone is vetted and is working with children and is subsequently charged and convicted of a sexual offence, under the Sex Offenders Act that person is required to inform his or her employer of the fact he or she has been convicted if he or she works with children or vulnerable adults. If he or she fails to do so, that is an offence. I originally hoped to have a new sexual offences Bill published before the end of the year but based on the schedule it will be published some time in the first half of next year, but as far as we can make some of the protections in that area more rigorous, we are addressing that in the new Bill.
An issue is that when someone is convicted, he or she must register as a sex offender within seven days of moving to a new location and we are examining this area. Again we must be careful. If someone was convicted of a minor offence, such as not paying half a dozen parking tickets, should that be included in circumstances where he or she works with children and vulnerable adults? Offences would have to be identified for when it is appropriate, which member of the Garda Síochána would be responsible for reporting it to the vetting bureau and the creation of a separate section within the vetting bureau to track where people are employed so the information can be communicated. I must be conscious of both practical matters and resource issues. I will give the issue some thought.
I raise the issue because of portability in that if someone is involved in four or five different organisations, at the moment must be vetted for each organisation. If an offence was committed in the interim-----
That is the principle.
This suggestion might deal with that.
Question put and agreed to.
SECTION 15
I move amendment No. 16:
In page 18, subsection (4), between lines 30 and 31 to insert the following:
“(g) the protections of the Constitution under Articles 38 and 40 and Article 6 of the European Convention on Human Rights (ECHR),”.
This is self-explanatory and follows on from the concerns of the Human Rights Commission. The commission specifically referred to the rights of citizens under Articles 38 and 40 of the Constitution, the right to due process and the ability to defend themselves.
Essentially, we are trying to explicitly state that we are aware of the rights of citizens under the terms of this legislation and that they are protected.
There are what I describe as due process provisions expressly contained in the legislation. For example, in relation to dealing with soft information, the person being vetted must be informed about what information is available and be given the opportunity, through the processes prescribed in the legislation, to address it if he or she believes it to be untrue or inaccurate in some way.
This amendment is unnecessary for a number of reasons. The operation of any legislation has to be compliant with the Constitution in its entirety, not just in respect of two specified Articles. It is, therefore, not appropriate or necessary to suggest that a Bill should be compliant solely with the Articles named by the Deputy in his amendment. Equally, the operation of legislation must be compliant with the European Convention on Human Rights. In any event, I consider that the wording of subsection (f) of this Section pays due regard to the principles of the Constitution and the European Convention on Human Rights. This states that the bureau shall have regard to "whether the rights of the person have been considered and taken account of in a manner that is consistent with fairness and natural justice".
In effect, this Bill, like all others, is subservient to the express provisions in our Constitution and the court judgments interpreting their application. It would be most unusual, in that context, to publish legislation that recites within it that it must meet a certain requirement of a particular Article in the Constitution because there is a particular vision within the Constitution which requires that legislation accord with it when it is enacted through the Houses. One of the reasons we have provisions for an Article 26 reference to the Supreme Court is that, where a Bill has gone through both the Seanad and the Dáil and the President has a doubt about its constitutionality, it can then be tested under that reference.
We have a double-lock mechanism with regard to legislation. In the first instance, we have the obligation on Government to publish legislation that is not at variance with or in violation of our Constitution. Ultimately, if there is an issue as to the constitutionality of legislation, the President can make a reference, having consulted with the Council of State. If all of that fails and there is a constitutional impropriety, it is open to any citizen to bring a constitutional case if they deem it appropriate or if they feel that rights are being violated. The particular Articles named by the Deputy could be relevant and applicable, if that was the case. Indeed, if there was an issue relating to the European Convention on Human Rights, again, under legislation enacted some years ago, the courts have an entitlement, domestically, to proof legislation against that convention. Finally, citizens have a right to go to the European Court of Justice. There is a whole range of protections in this area.
We are not doing too badly given that this is my seventh amendment but only our first disagreement. I will press this amendment.
Amendment put and declared lost.
Question, "That section 15 stand part of the Bill", put and agreed to.
SECTION 16
I move amendment No. 17:
In page 19, subsection (4), line 46, to delete “subsection (2)” and substitute “subsection (3)”.
This amendment simply corrects a cross-referencing error in the Bill and has no other function.
SECTION 17
Amendment agreed to.
Section 16, as amended, agreed to.
Amendment No. 18 has been ruled out of order.
Amendment No. 18 not moved.
Section 17 agreed to.
Sections 18 to 25, inclusive, agreed to.
SECTION 26
I move amendment No. 19:
In page 25, subsection (1), line 37, to delete “16(3)” and substitute “16(4)”.
This is a technical amendment to correct a cross-referencing error in the Bill.
SCHEDULE 1
Amendment agreed to.
Section 26, as amended, agreed to.
Sections 27 to 31, inclusive, agreed to.
I move amendment No. 20:
In page 28, lines 28 and 29, after “children” to insert the following:
“to include work carried out by persons who engage in the provision of childminding services for reward for any period of time as well as work carried out by a nanny and/or au pair service or similar such service whether in their own home or the home of their employer”.
Amendment put and declared lost.
Amendments Nos. 21 and 23 are related and may be discussed together, by agreement.
I move amendment No. 21:
In page 28, lines 39 to 44, to delete paragraph 6 and substitute the following:
“6. Any work or activity which consists of the provision of advice, guidance or developmental services (including by means of electronic interactive communications) to children unless the provision of the advice, guidance or developmental service is merely incidental to the provision of those services to persons who are not children.”.
These are minor technical amendments. They delete the reference to "counselling services" in these two paragraphs because the requirement for persons providing counselling services to apply for vetting is already contained in paragraph 3 of Schedule 1, Part 1 and in paragraph 2 of Schedule 1, Part 2. In practical terms, this is a technical amendment.
Amendment agreed to.
I move amendment No. 22:
In page 30, lines 14 to 20, to delete subparagraphs (e) and (f).
This is a minor amendment to delete these two sub-paragraphs because they duplicate the provisions already contained in paragraphs 4 and 5 of this part of the Schedule.
Amendment agreed to.
I move amendment No. 23:
In page 30, lines 37 to 43, to delete paragraph 5 and substitute the following:
“5. Any work or activity which consists of the provision of advice, guidance or developmental services (including by means of electronic interactive communications) to vulnerable persons unless the provision of the advice, guidance or developmental service is merely incidental to the provision of those services to persons who are not vulnerable persons.”.
Amendment agreed to.
Schedule 1, as amended, agreed to.
Schedule 2 agreed to.
Title agreed to.
I thank the Minister, his officials and Members for attending today. This committee was quite involved in the pre-legislative stage of this Bill and Members were very happy to have had that opportunity. I believe it was very useful for the Department as well as the Select Committee and the general public to have that engagement.
I very much appreciate the work the committee did when we published the heads of the Bill and I read with great interest the committee's proceedings and the report it produced. The fact that we were able to have a smooth Committee Stage debate is indicative of the value of that type of input before we publish a Bill. I am looking forward to similar input in other areas and in that context, I acknowledge that I have asked the committee to undertake a lot of work. I thank the committee for the work it is doing. It is really valuable that Deputies, at an early stage, can contribute to the drafting and publication of Bills, rather than simply being confronted by them, as a substantially completed project, when they are presented by Government. This early input will ensure that we will have far better legislation enacted by the House. I am very grateful for the work of the committee and thank Members for their co-operation in completing Committee Stage. I am very anxious to enact this Bill as soon as possible.
I intend to follow up the issues I promised we would follow up. At the earliest possible opportunity thereafter we will try to arrange to take Report Stage in the House.
We also wish to recognise the work the officials have done on the legislation, and the work done by those in the Office of the Attorney General. It is much appreciated.
Bill reported with amendments.