Wednesday, 5 Feb 2014

Written Answers Nos. 1 - 18

Garda Vetting of Personnel

Questions (10, 18)

Robert Troy

Question:

10. Deputy Robert Troy asked the Minister for Justice and Equality if his attention has been drawn to a situation that has arisen with regard to Garda vetting of early education and child care training programmes; that training organisations which process all Garda vetting forms for students have been informed by the Office of the Data Protection Commissioner that they cannot, under data protection legislation, share this with a third party placement facility as this requirement is jeopardising work placements; and if he will make a statement on the matter. [5290/14]

Robert Troy

Question:

18. Deputy Robert Troy asked the Minister for Justice and Equality the action he will take to address issues that have arisen with regard to the sharing of Garda vetting information between child care providers and the providers of training for child care staff; and if he will make a statement on the matter. [5291/14]

Written answers

Minister for Justice and Equality

I propose to take Questions Nos. 10 and 18 together.

It is my understanding that the issue raised by the Deputy relates to the work experience placements of child care trainees in child care projects. This placement is short term in nature and is usually organised by colleges as part of the training on child care courses. The colleges conduct Garda vetting of the persons on the course, and the work experience providers can then rely on the fact that the person has already been vetted by the college.

I understand that in the course of audits of child care providers, the HSE has sought a certified copy of the Garda Vetting Disclosure to be provided to the relevant child care provider. It is the view of the Data Protection Commissioner that this is not necessary. In September 2013 the Data Protection Commissioners wrote to the colleges in question and to the HSE, suggesting that a written confirmation that a college has vetted a person is sufficient confirmation that the Garda Vetting process has been complied with.

Elements of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 relating to the disclosure of convictions are under review at present having regard to a recent judgment of the UK Court of Appeal. I intend bringing proposals before the Oireachtas to provide that certain old minor convictions will not be disclosed under the provisions of the 2012 Act. Given the close relationship between this Act and the Spent Convictions Bill, which is before the Oireachtas at the moment, any changes to the Vetting Act will have to be reflected in the Spent Convictions Bill. The amendment of the Vetting Act will also be done via the Spent Convictions Bill.

I also intend to bring an amendment to the 2012 Act to provide that where two or more organisations are jointly responsible for the employment of a person, whether the person is paid or unpaid, the organisations can agree in writing that one of them will be responsible for conduction of the Garda vetting, and the other organisation may rely on that fact. I believe that this will fully address the issue raised by the Deputy. In the meantime organisations can continue to operate in accordance with the procedures already agreed with the Data Protection Commissioner.

Penalty Points System Investigation

Questions (11)

Mick Wallace

Question:

11. Deputy Mick Wallace asked the Minister for Justice and Equality the person that undertook the internal audits of fixed charge notice cancellations in November and December 2013; the method used to carry out these audits; if he will commit to publishing all internal audits of fixed charge notice cancellations on a regular basis; and if he will make a statement on the matter. [5350/14]

Written answers

Minister for Justice and Equality

Following the publication of the two Garda reports on fixed charge notices the Garda Commissioner established an implementation group to revise the Garda Policy document on the Fixed Charge Processing System and to implement the recommendations from these reports in consultation with the Office of the Director of Public Prosecutions. The output from this work was a circular from the Commissioner which significantly tightened up on procedures for the cancellation of Fixed Charge Notices. This set of revised procedures, which includes audit arrangements to ensure compliance, issued to all members of the Garda Síochána on 30 August, 2013.

I am advised by the Commissioner that the Assistant Commissioner, Traffic, the Garda Professional Standards Unit and Garda Internal Audit Section have undertaken, and will continue to undertake, regular audits of the cancellation of fixed charge notices against the revised cancellation procedures. Audits to date include the following:

- The Assistant Commissioner, Traffic has conducted an audit of decisions to terminate by selected Divisional Officers and all those examined were found to be in accordance with policy.

- The Garda Professional Standards Unit has conducted an audit of decisions to terminate fixed charge notices by 24 Garda District Officers. All decisions examined were found to be in accordance with policy.

- The Garda Internal Audit Unit has conducted an audit of non-discretionary cancellations at the Fixed Charge Processing Office. The audit found that the office was complying with the revised procedures.

I am further advised that the Assistant Commissioner Traffic will report annually to the Commissioner the findings of these audits and that the Commissioner will, in turn, submit a report on the matter to my Department. I will consider publication of such reports in due course.

Penalty Points System Investigation

Questions (12)

Pádraig MacLochlainn

Question:

12. Deputy Pádraig Mac Lochlainn asked the Minister for Justice and Equality with reference to section 102 of the Garda Síochána Act 2005, the cause of the delay in referring the ongoing allegations of malpractice in relation to the fixed charge penalty notice system until now; and if he will make a statement on the matter. [5331/14]

Written answers

Minister for Justice and Equality

It is important to understand the basis for a referral of a matter to the Garda Ombudsman Commission under section 102 of the Garda Síochána Act 2005. Section 102 permits me to refer a matter to the Garda Ombudsman Commission for investigation where it appears to me to indicate that some members of the Garda Síochána may have committed an offence or behaved in a manner that would justify disciplinary proceedings, and where I consider it desirable in the public interest to do so.

There is therefore a dual test to be met before a matter can be referred under section 102. It is not open to me to make a referral simply because I wish to do so. It is also worth noting that, under section 102, the Garda Ombudsman Commission can on its own initiative investigate any such matter on exactly the same grounds. In other words, insofar as I can refer a matter to the Garda Ombudsman Commission under section 102, the Garda Ombudsman Commission can in any event choose to investigate it on its own initiative.

Notwithstanding a recent detailed Garda investigation into these allegations, I concluded that it was now in the public interest that this referral be made, particularly in circumstances where continuing allegations were being made and where the Garda Síochána was being drawn into a matter of political controversy, so that public concern over this matter could be definitively addressed. The Garda Ombudsman Commission should now be given the time and space to conduct a thorough investigation of the allegations and the circumstances in which they were made and pursued.

Protected Disclosures in the Public Interest

Questions (13, 25)

Mick Wallace

Question:

13. Deputy Mick Wallace asked the Minister for Justice and Equality in view of the experiences of the Garda whistleblowers, if he is satisfied with the manner in which the position of the confidential recipient is operating; if he has any plans to review the workings of this position; and if he will make a statement on the matter. [5349/14]

Clare Daly

Question:

25. Deputy Clare Daly asked the Minister for Justice and Equality his views in relation to the functioning of the Garda confidential recipient; and his views on whether it needs to be reformed in order to protect Garda whistleblowers. [5308/14]

Written answers

Minister for Justice and Equality

I propose to take Questions Nos. 13 and 25 together.

The Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations 2007 provide for an independent Confidential Recipient to whom members of the Force can report, in confidence, instances where they believe there may be corruption or malpractice within the Force. The Confidential Recipient is required to transmit each report to the Garda Commissioner for investigation, but there are strong safeguards in the Regulations for the protection of the identities of confidential reporters.

This procedure was put in place as part of a sectoral approach towards the protection of whistleblowers, with different provisions made for different sectors. This Government is taking a different approach, as we promised in the Programme for Government, and is committed to a unified system of strong and effective protection for whistleblowers, in both the public and private sectors, based on international best practice. These proposals are contained in the Protected Disclosures Bill 2013, which has been published by my colleague the Minister for Public Expenditure and Reform. The Bill has been passed by Seanad Éireann and awaits second stage in this House.

I recently indicated that I was considering the relevant provisions of the Garda Síochána Act 2005 with a view to empowering the Garda Ombudsman Commission to operate within the architecture of the Protected Disclosures Bill and to receive and act on confidential reports by members of the Garda Síochána.

Insolvency Service of Ireland Data

Questions (14)

Niall Collins

Question:

14. Deputy Niall Collins asked the Minister for Justice and Equality the number of deals concluded under the new personal insolvency regime to date; the number sought; and if he will make a statement on the matter. [5298/14]

Written answers

Minister for Justice and Equality

As I have advised the Deputy previously, the Insolvency Service of Ireland (ISI) has indicated that in the interest of confidentiality it will not be providing details or breakdowns of the numbers of applications for the various debt solutions received or being processed at this time. The ISI has indicated that it fully intends to provide quarterly statistics once a statistically meaningful number of applications have been processed. This is anticipated to be in the second quarter of 2014.

Magdalen Laundries

Questions (15)

Anne Ferris

Question:

15. Deputy Anne Ferris asked the Minister for Justice and Equality the number of applications for the Magdalen redress scheme that have been processed; the payments made and the contribution to date of the four implicated religious orders to that scheme; and if he will make a statement on the matter. [5250/14]

Written answers

Minister for Justice and Equality

To date, 680 applications have been received under the ex gratia scheme which was established by Government for the benefit of those women who were admitted to and worked in the Magdalen Laundries, St Mary's Training Centre, Stanhope Street and House of Mercy Training School, Summerhill, Wexford. The applications are being processed as quickly as possible and over 280 letters of formal offer have issued to women at this stage. As soon as an applicant accepts the offer, payment will be processed quickly. So far, 144 women have accepted the formal offer and as at the end of January payments issued to over 100 applicants totalling €3.5 million.

With regard to a financial contribution being made by the four religious congregations concerned, the Deputy will be aware that I discussed this matter with representatives of the four religious congregations in June 2013. Having reflected on the matter, all four declined to make a contribution. Following a discussion of the issue at Government in July 2013, I wrote to the congregations expressing disappointment that they had decided not to make a financial contribution, pointing out that the Government was of the view that the congregations had a moral obligation to do so, and urged them to reconsider. The congregations responded reaffirming their position.

I wrote to the religious congregations again on this matter 2 weeks ago following a statement made by the Holy See to the United Nations Committee on the Right of the Child in relation to the Magdalen Laundries. I am awaiting responses to this letter. The four religious congregations are fully cooperating with the scheme and are providing all the available records and verifications as requested.

Asylum Applications

Questions (16)

Seán Kyne

Question:

16. Deputy Seán Kyne asked the Minister for Justice and Equality if he will report on the new form and letter that has been sent to persons seeking asylum regarding applications for subsidiary protection; if his attention has been drawn to the problems being encountered by persons seeking asylum regarding solicitors announcing an inability to assist with the new form and letter; if he appreciates that the provision of information and advice free of charge is essential in such situations regarding persons in a vulnerable position; and if he will confirm the ramifications for persons who, out of uncertainty, do not complete and return this new form. [5338/14]

Written answers

Minister for Justice and Equality

I should clarify for the Deputy that the persons we are referring to here are failed asylum applicants who are now applicants for subsidiary protection. Subsidiary protection is protection to be granted to a person in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm and who is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country, and who is not excluded from being eligible for subsidiary protection. As the Deputy may be aware I made new Regulations last year governing the investigation and determination of applications for subsidiary protection in the State. The European Union (Subsidiary Protection) Regulations 2013, which came into effect on 14 November 2013, were made to address certain matters which arose from the judgment of the High Court in January 2013 in the MM case.

Under the new Regulations, responsibility for the processing of applications for subsidiary protection was transferred from my Department to the Office of the Refugee Applications Commissioner with appeals to be dealt with by the Refugee Appeals Tribunal. Both of these bodies are independent in the exercise of their statutory functions and they have substantial experience in the area of asylum investigations and appeals respectively. As I have said previously, by its very nature, the processing of applications for international protection is a solemn and complex task which does not always lend itself to achieving speedy outcomes. However, now that processing has recommenced and once the new arrangements have bedded down, my aim is for subsidiary protection applications currently on hand to be processed to finality by the statutory bodies concerned in the shortest possible timeframe consistent with quality and fair assessment of all cases and of course, subject to the cooperation of applicants and no further legal impediments arising. In those circumstances I would anticipate very significant inroads to be made on the caseload by the end of 2014.

I fully concur with the Deputy's view that it is important that early legal advice is made available to subsidiary protection applicants. For that reason, I have ensured that the necessary resources have been made available to the Refugee Legal Service (RLS) to provide legal advice and support. Applicants have been advised that they can avail of the services of the RLS. The RLS is an independent body under the aegis of the Legal Aid Board which was established to provide a confidential legal service to persons applying for protection in the State. I would urge subsidiary protection applicants, who do not have access to legal advice to contact the RLS. Alternatively, applicants may seek the services of a private solicitor at their own expense.

Following the commencement of the Regulations, some 3,300 applicants for subsidiary protection were sent a registered letter by INIS to explain the new arrangements and to request them to indicate, by completing the relevant enclosed form, whether they wished to proceed with their application, withdraw their application or make further submissions. Applicants were also requested to confirm the details of their family members and their legal representatives. A comprehensive Information Note explaining the new arrangements and the availability of legal assistance was enclosed with the letter setting out all that was required of applicants. An information note has also been placed on the ORAC website in some 16 languages as well as English. In addition non-governmental organisations involved in this area were also notified of the new arrangements.

The letters issued by INIS informed applicants that, in accordance with the new Regulations, their application could be deemed to be withdrawn if they fail to co-operate with the Commissioner or furnish information relevant to their application. I would recommend that applicants who require further information on the new process should contact the Refugee Applications Commissioner's Office as soon as possible where further information or clarifications can be provided. The Refugee Applications Commissioner has advised that some 1400 of the applicants written to have indicated a wish to continue with their applications, with some 300 applicants indicating their wish to withdraw their applications. The remainder of the registered letters issued have either been returned undelivered or have not been replied to.

I understand that initially, the Refugee Applications Commissioner intends to prioritise applications on the basis of the date of application and, accordingly, applicants have been informed that their personal interview may not be scheduled for a number of months due to the large number of applications to be processed. A panel of legally qualified persons has been established to assist the ORAC with the processing of these cases. Comprehensive training has been provided to the panel by ORAC training experts in close co-operation with protection experts from the United Nations High Commissioner for Refugees.

I am pleased to report that interviewing of subsidiary protection applicants commenced in ORAC on 12 December 2013 and that recommendations have begun to issue to applicants. Finally, I should emphasise that all subsidiary protection applicants have permission to remain in the State until a final decision has been made in relation to their application and they have been issued with a status letter by INIS to that effect.

Sexual Offences Data

Questions (17, 29)

Luke 'Ming' Flanagan

Question:

17. Deputy Luke 'Ming' Flanagan asked the Minister for Justice and Equality the steps he has taken to ensure that solicitors protect the interests of their clients particularly in relation to child victims of sexual abuse. [5320/14]

Mick Wallace

Question:

29. Deputy Mick Wallace asked the Minister for Justice and Equality his views on whether there are sufficient protections in place for children who are the victims of sexual abuse when a solicitor suppresses information in his or her possession in relation to that abuse; and if he will make a statement on the matter. [5352/14]

Written answers

Minister for Justice and Equality

I propose to take Questions Nos. 17 and 29 together.

The Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012 makes it an offence for any person to deliberately withhold information regarding sexual and other serious offences committed against a child or other vulnerable person. Under section 2 of the Act, a person who knows or believes that an offence has been committed against a child and has information which he or she believes would be of material assistance in the apprehension, prosecution or conviction of that perpetrator and who fails to disclose that information to the Garda Síochána is guilty of an offence. That offence, however, is without prejudice to any right or privilege that may arise in criminal proceedings entitling a person to refuse to disclose information. The extent to which such right or privilege may arise would be a matter for a court to determine.

It is my understanding that the Law Society has also taken steps to try to address this question in the updated and third edition of 'A Guide to Good Professional Conduct for Solicitors' which it published in October 2013. In dealing with issues of privilege and confidentiality, guidance is provided in the new Guide for solicitors in relation to cases involving abuse or neglect of children as follows - "Similarly, there may be situations where an adult discloses abuse or neglect either by himself or by another adult against a child but refuses to allow any disclosure to third parties. If the situation indicates continuing sexual or other physical abuse, or ongoing neglect of a child, and there is a serious threat to the child’s life or health, whether mental or physical, but there is a refusal on the part of the client to allow disclosure of such information, if the situation is sufficiently serious, a breach of the overriding duty of confidentiality may be justified and a confidential referral to a medical practitioner can be made. The solicitor should consider whether the situation is sufficiently serious to justify such a breach." (A Guide to Good Professional Conduct for Solicitors, 3rd Ed., p.33-34).

In relation to the course of action open to a client of a solicitor who feels aggrieved by the actions of that solicitor in relation to the protection of the client's interests concerned, it should be noted that the Law Society is the statutory body responsible for the regulation of solicitors under the Solicitors Acts 1954 to 2011 to which complaints about such a grievance should be made.

Question No. 18 answered with Question No. 10.