I thank Deputy Daly and Deputies Cronin and Donnelly for introducing this Private Members' Bill on Second Stage today and acknowledge their intentions in bringing forward the Bill.
I would also like to acknowledge, as Deputy Daly has, the work of the OPLA, which does extraordinary work to support Deputies in this House in producing Private Members' Bills. In my first role in this House, I was legal adviser in Fine Gael and my responsibility was to draft Private Members' Bills among other things and I drafted some spectacularly bad ones. It is very important that Members of the Oireachtas have dedicated, experienced drafters. Nevertheless, I always found when we were producing Private Members' Bills then, the Government response was almost always that it could not proceed because it was badly drafted. It was not a good way of dealing with legislation. That the OPLA is now there and can provide real support, is a much better way.
Notwithstanding that, something I have learned over the years is that the complexity of the drafting process with the OPC and the complexity of the policy formation process and how those things interact is equally difficult and important. For instance, I think the purpose of what this legislation seeks to do is excellent. When this process of reviewing the vetting process began in 2021, like other Deputies, I was in touch with all my sports clubs to ask how it should be improved, what were the practical issues and how we could make it better. There is a report which will be published at the end of the month about that. It has taken some time. There was some complexity with Covid and getting the different elements together but there is no question about the will of this House and its Members who work so closely with their local communities to make sure that this process is improved for the benefit of everybody in their community and particularly for the protection of children, first and foremost, but also for the administrative ease of the sports clubs and the people who are giving voluntarily of their time to participate in training kids in sport. It is very important.
This Private Members’ Bill seeks to amend the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 to streamline the system of Garda vetting in situations where multiple vetting applications are made. The stated aim of the Bill is to provide for a register of generalised consents, which is intended to alleviate the administrative burden of making multiple vetting applications. The Bill seeks to provide that multiple organisations could vet an individual whose consent is included in the register without the entire vetting process having to be completed every time. That makes a lot of sense. The aims of the Bill are in line with Government policy. For this reason, we will not oppose the Bill.
However, there are some issues which I will tease through I may. While the intention behind the Bill as proposed by the Deputies has merit, the vetting process is complex and there are issues with legal, policy and operational aspects of the Bill as drafted, which I will turn to.
Under the current system of vetting, the new employee or volunteer is responsible for supplying accurate and up-to-date information to his or her employer but applications for vetting are submitted by the employer or voluntary organisation, rather than the person him or herself. The Garda National Vetting Bureau consults all of the relevant records available to the bureau to produce a vetting disclosure and this is used by the organisation to inform their different decisions. The vetting process also enables organisations to comply with legal obligations where sensitive work or vulnerable people are involved. The legislation stipulates that a relevant organisation shall not permit any person to undertake relevant work or activities on behalf of the organisation, unless the organisation has received a vetting disclosure from the bureau.
I agree that the current system of vetting can be burdensome in some circumstances. The need for complete and accurate information for the vetting process can cause frustration where a lot of detail needs to be submitted, particularly where people are involved in several voluntary groups or organisations at the same time or for short periods in quick succession. The interests of children and the issue of State liability requires that any known concerns regarding a prospective employee are assessed and addressed in a timely, rigorous and efficient manner. This ensures that organisations seeking vetting disclosures are notified where An Garda Síochána considers that disclosure of specific information is necessary, proportionate and reasonable for the protection of children. The safeguards provided by the legislation are very important and any changes must take place with proper consideration of all of the potential consequences. That is what we must think through.
The Deputy is aware that both the programme for Government and justice plan 2024 contain commitments to review the current vetting legislation and, as I said, that has begun. The Garda vetting review group will report in the coming month. The group is led by the Department of Justice and its purpose is to make recommendations to strengthen the vetting process. The group is considering approaches to vetting for specific employments.
It is assessing how to provide for the introduction of an effective system for revetting persons who were previously vetted. As part of the review process, consultations have happened with Sport Ireland, Charities Institute Ireland and the National Youth Council of Ireland, and feedback is ongoing. I understand they will be make their recommendations by the end of the month.
Returning to the Private Members' Bill and what has been suggested, it is important to acknowledge that the complexity of the vetting process is due to the vulnerability of children and adults. Our duty to provide for their safety is paramount. That means that the new proposals have to be considered with the utmost care. The difficulty with the Bill as drafted is that it does not account for differences in risk profiles between differing roles for which a person may need to be vetted. For example, a new role that involves intimate contact with children or vulnerable people, where a prior vetted role may have related to work under supervision, creates a risk of undermining the core purpose of the vetting process by not ensuring the vetting disclosure has been complied with, with a new role in mind which is different from the last role for which the person was vetted. It is, of course, as the Deputy will agree, vital to the safety and welfare of children and vulnerable people that an employer receives information which is both accurate and relevant at the time they make important staffing decisions. There is a complexity there which is one of the many that will have to be considered. When changes are made, I know the Deputy will be contributing to that as well but I just point out the particular difficulty in this Bill.
The central aim, however, of the Private Members' Bill is to reduce the administrative burden in vetting without diminishing the projecting involved. I totally understand that. In a very genuine way, it is to reduce the administrative burden involved in vetting particularly where people may need to be vetted by several organisations as can happen if somebody is good enough to be involved in volunteering or coaching in multiple sports clubs. By providing for a register of general consent, the Deputies believe it would remove the need for an employee to submit all their details for every vetting disclosure while their consent is active. That is fair enough. However, if it was enacted, as currently drafted, it appears that the provisions may actually increase the amount of work and effort involved both for the organisations seeking a vetting disclosure and for the National Vetting Bureau. The Private Members' Bill provides that a person would give their consent to vetting for a three-year period, during which they could potentially be vetted several times depending on what they were applying to do. However, the need for consent to be repeated is unfortunately the least onerous part of the application process. While the new employee or volunteer would no longer be required to submit all of their details to every organisation with which they are involved every time they are to be vetted for the period covered by their consent, that is unfortunately only the beginning of the vetting process.
The organisation applying for vetting would still need to obtain personal details so that the bureau could confirm if the subject has made a general consent and that it was within three years, and they would still need to check that the subject’s information recorded on the register is up to date. To add to this, the Bill will not change the process carried out by the National Vetting Bureau in arriving at a vetting disclosure. Each organisation would still be required to submit a separate application to the bureau and the bureau would still need to examine the records to make each vetting disclosure. Therefore, there would be a waiting period between when the employer submits an application and when a disclosure is received. In addition to this, the Private Members' Bill, as currently drafted, would impose a new obligation on the bureau to periodically check that the records are kept up to date for the three-year consent period, which would potentially require the bureau to divert resources from its core tasks to keeping a consent register up-to-date and sending out notices to people on the register. All of which may be where we have to go but this is just to tease out the particular practical difficulties at present.
Furthermore, the Attorney General's office has raised concerns in relation to criminalising those who fail to update their personal information. If that happens, they face a fine or a potential prison sentence of up to six months, which might not be proportionate relative to the volunteer trying to participate in children's sports in a reasonable way. As the Bill does not provide for a defence to this, it appears to be unduly punitive in circumstances where a person might forget to notify a change of address or a name change by marriage, within three months. There is a bit of work to do there.
The Attorney General has also advised that providing for revetting requires caution due to the potential impact upon a person’s constitutional rights to their good name and their livelihood, which is always the case when we are dealing with criminal offences. The protections provided in employment law differ between people who are being vetted for new roles and anyone who is being revetted. Those being vetted for the first time for a new role are protected from discrimination under the Employment Act, but the employer still has wide discretion on grounds of suitability. People who are being revetted for a job that they already hold are protected by the Unfair Dismissals Acts. That legislation provides existing employees with much greater protection than a prospective employee or volunteer. Any proposal for a system of revetting would need to be carefully drafted to ensure compliance with the law in that area and to ensure the provisions are robust enough to withstand legal challenges brought by people who may lose their jobs after an unfavourable revetting disclosure. An important issue here is what the employer can do with any unfavourable information they receive from a revetting disclosure. From the perspective of protecting a child or vulnerable person, the bureau must be in a position to ensure revetting disclosures are robust enough to support the employer in taking appropriate action. The bureau itself is not responsible for any decisions made by employers, but the system of vetting and the evidence basis for disclosures must be adequate to ensure children and vulnerable adults are protected. A further consideration to tease through is that a person should be vetted for future work that they might carry out in that employment, for example, on completion of probation or if they are promoted or redeployed.
What we do want to see is the way in which vetting within categories of employment or volunteering with similar risk profiles can be considered carefully. There is a bit of work to do there for us all. For example, if additional responsibilities involve a change in a person’s access to children or vulnerable people with an increased risk profile, they may need to be vetted again. We all want to see the system of vetting improved. This Private Members' Bill makes an important contribution to that in teasing out some of the practicalities of how that might be done. There has been a body investigating this for some time with detailed consultations with the different sports groups and we will see that report this month. As we approach that body of work, I suggest that when that report is produced, we look at it collectively with a shared objective of trying to improve this process; make it more administratively efficient; keep the underlying protection for children and vulnerable adults or vulnerable persons more broadly; make an efficient way of enabling people to gain, be promoted and changed within employment structures; and perhaps most notably of all, ensure we retain the fantastic volunteer ethos we have in Ireland and the contribution people make all over the country to different sports clubs among other activities.
Notwithstanding some of the issues I have teased out here, I want to reiterative my appreciation to the Deputies for seeking to address limitations, which we acknowledge exist within the current legislation, from a desire to improve the process.