In this next instalment in our series of essays on Garda Vetting and the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012-2016 (the “Act”), we’re going to take a walk along the path trodden by the Act in its legislative journey since 2011 up to 2016.
We'll look at its origins going back to 2008; its legislative birth in 2011 including the initial Regulatory Impact Analysis, public hearings and committee Reports; and the hurdles the legislation has encountered even before it came into effect, by virtue of the right to privacy under the European Convention on Human Rights.
- 2008 Joint Committee on the Constitutional Amendment on Children recommends vetting legislation
- Summer 2011: Regulatory Impact Analysis issued on the proposed scheme of the National Vetting Bureau Bill
- Summer 2011: Heads of Bill published and debated
- September 2011: First Report of Joint Committee on Justice, Defence & Equality; followed by public hearings
- November 2011: Second Report of Joint Committee on Justice, Defence & Equality
- National Vetting Bureau Act 2012 enacted, not commenced
- In the meantime, a 2013 UK court case found part of the UK law on vetting to be incompatible with Article 8 of the European Convention on Human Rights (the right to privacy)
- In 2014, in response, the Department of Justice in Ireland introduced an interim 'Administrative Filter' to deal with the issues applicable in the Irish legislation identified in the 2013 UK court case
- Outcome of this was the recent enactment of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 which operates in tandem with the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016
- 2016: National Vetting Bureau Acts (Children and Vulnerable Persons) 2012 to 2016 comes into effect
Garda Vetting in general, and Garda Vetting Forms in particular, are now governed by the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012-2016. The Act deals with putting Garda Vetting on to a statutory footing.
HOW DID WE GET HERE, FROM THERE?
It has been both a long and winding process both to get to the point where the original Heads of the Bill were introduced five years ago, in summer 2011, to where we are today in 2016 with the legislation going live.
There are a number of reasons why the legislation is only being commenced (come into effect) some four years after it was originally enacted in 2012, some five years since the original heads of the bill were published.
(Now let’s just stop and think about that for a moment. That’s half a decade since the original Heads of the Bill were published. Certainly nobody can accuse the Oireachtas of acting in haste on this legislation).
WHAT IS GARDA VETTING?
Just a quick circle-back though. Colloquially known as Garda Vetting, vetting as envisaged by the Act is the now statutory process for relevant organisations checking the personal history of persons looking to undertake certain work or activities with children or vulnerable adults, or provide services to those two groups.
Let’s be clear from the outset however that this is nothing new.
In fact all it takes is a cursory look through the archives to see that organisations working with children and vulnerable adults have lobbied for this legislation in this area for years.
Indeed, some 8 years ago in 2008, you can read the issue being discussed, in parallel with a discussion on the widespread non-compliance with the mandatory Children First guidelines (in the context of the then Joint Committee on the Constitutional Amendment on Children Debate).
In September 2008 the Joint Committee on the Constitutional Amendment on Children presented an Interim Report to the Oireachtas. The Committee made the following recommendations:
REGULATORY IMPACT ANALYSIS OF 2011 HEADS OF BILL
We will take a look on another occasion, in more detail, at the above Regulatory Impact Analysis that was carried out in 2011 on the proposed legislation. Of note is one of the summary comments that anticipates the following:
RESPONSE TO THE RYAN REPORT
Remember too that this legislation, the National Vetting Bureau Acts 2012-2016 is, in no small part, a legislative response to the Report of the Commission to Inquire into Child Abuse (the Ryan Report) that was published in May 2009.
The Ryan Report (the “Report”) detailed disturbing and significant levels of historic abuse of children, who were placed by the Irish State in residential institutions run by religious orders. The Report precipitated a review of the current organisation and delivery of child welfare and protection services nationally.
As part of making sure the Report didn’t simply become another inquiry document left to gather dust on the shelves of the Oireachtas, a detailed Implementation Plan was prepared and published in July 2009.
The Government committed to the full implementation of this Plan.
The Implementation Plan sets out a series of 99 actions designed to: address the effects of past abuse; reform service provision, and, ensure that children and young people have a stronger voice. Some of the 99 actions have a specific target date for completion, while other actions are noted as ‘ongoing’.
THE RYAN REPORT AND THE 99 ACTIONS
Adherence to the implementation of the 99 actions committed to arising out of the Report is overseen by the Ryan Report Monitoring Group (the most recent of whose progress reports, their fourth, was published in December 2014 and can be accessed here).
With the election of the new government following the entry of the Eurogroup/ECB/IMF Troika and the bailout of Ireland, part of the new government’s manifesto commitments had been to implement Children First guidelines onto a statutory footing, and to enact legislation to deal with Garda vetting and the processing of Garda vetting forms.
So what we are going to do now is taking a whistle stop tour of some of the significant milestones passed in the last five years, that brought us to this point today in 2016.
2011 DRAFT HEADS OF THE BILL
The draft heads of the National Vetting Bureau Bill were published on 27 July 2011.
Coming in 42 pages long it was a weighty document. In an innovative fashion, the Committee responsible for the Heads invited submissions from interested parties (a relatively novel concept at that point). 17 submissions were made (I submitted one of these) and later that summer the Houses of the Oireachtas Joint Committee on Justice, Defence & Equality published its First Report entitled ‘Submissions received in relation to the Scheme of the National Vetting Bureau Bill. You can find my submission at pp.23-30 of the First Report:
Interestingly, the Heads of the Bill were published literally before the August holidays in 2011, with a very short deadline of a few weeks in which to make submissions on the Heads of the bill. This was far from ideal and gave a potential perception that the drafters of the legislation were trying to avoid too much scrutiny being invited upon the Heads of the bills as they then were. Nonetheless it was still part of a new initiative allowing for earlier input into the legislative process and for this reason alone the process was to be commended in my view.
“Any debate on this matter is best served by open access to the divergent views received”.
First Report - 2011
PUBLIC HEARINGS IN THE OIREACHTAS
Open access to those views was, in part, facilitated by the public hearing were held on 21 September 2011. The Chairman’s preface to the Second Report on Hearings in relation to the Scheme of the National Vetting Bureau Bill, which was published in November 2011, stated:
“The protection of children and vulnerable adults is paramount and striking a balance between that and the rights of individuals will be a very complex undertaking".
Primary issues identified by the Committee were:
- Definition of 'ad hoc'
- Access to confidential information
- Exemptions from vetting
- Access to private residences
- Previous convictions
- Dealing with other jurisdictions
- Portability of vetting
Running to 36 pages, this Second Report invited contributions from the ISPCC, Barnados, the GAA, Swim Ireland, Poetry Ireland, Create Ireland, Rape Crisis Network Ireland, Society of St. Vincent de Paul, The Teaching Council, Irish Universities Association, Irish National Treachers Organisation and The Arts Council.
NATIONAL VETTING BUREAU (CHILDREN AND VULNERABLE PERSONS) ACT 2012
The 47th piece of legislation published in 2012 was the National Vetting (Children and Vulnerable Persons) Act 2012, enacted on 26th December 2012. You can read a full copy of the Act here.
But the catch in the tail comes, as it often does, in the preliminary section:
s. 1 (2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.
So, how come there’s been an almost 4 year delay since the legislation was published, and its coming into force in 2016?
POTENTIAL INCOMPATIBILITY OF THE LEGISLATION WITH ECHR ARTICLE 8 RIGHT TO PRIVACY
Joannelle O’Cleirigh, Partner in Arthur Cox, and her colleague solicitor Roberta Guiry, published an excellent insight into the delays:
On 30 January 2014, it was indicated in the Dáil that elements of the NVB Act relating to the disclosure of convictions were under review in light of the decision of the English Court of Appeal in R (T & Ors) v Chief Constable of Greater Manchester & Ors  EWCA Civ 25. In that case, the Court held that legislation which provides for the blanket disclosure of convictions and cautions, irrespective of their relevance, breaches the right to respect for private life, which is guaranteed by Article 8 of the European Convention on Human Rights (“the Convention").
The judgment of the Court of Appeal was subsequently appealed to the UK Supreme Court. On 18 June 2014, a five-judge Supreme Court delivered its judgment, upholding the Court of Appeal’s decision. Although the decision of the UK Supreme Court is not binding on the Irish courts, it will be of persuasive precedent in the event that a similar case is brought in Ireland, particularly as it is largely based on case law of the European Court of Human Rights in this area. Any review of the NVB Act should, therefore, take account of the principles set out by the UK Supreme Court in its decision.
THE ADMINISTRATIVE FILTER
The An Garda Siochane website sheds a little light on how this was dealt with:
On March 31st 2014, the Minister for Justice and Equality implemented an administrative filter to be applied to all Garda Vetting applications. The administrative filter is a new procedure being applied by the Garda Central Vetting Unit to allow certain minor convictions over 7 years old to be removed from disclosures. The purpose of this filter is to allow a more balanced, relevant and proportionate approach to Garda Vetting and will remain in operation on an interim basis pending the commencement of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. (Commencement date to be confirmed).
This ‘Administrative Filter’ can be found here.
This was an attempt to answer the question posed by the Irish Penal Reform Trust about the proportionality of information to be disclosed on Garda Vetting Forms, in the context of the importance of rehabilitation periods for people with criminal records such that certain convictions are no longer declared after a set rehabilitative period. Read here for more on this ground-breaking step on the website of the Irish Penal Reform Trust.
CRIMINAL JUSTICE (SPENT CONVICTIONS AND CERTAIN DISCLOSURES) ACT 2016
This has been subsequently dealt with in the context of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 (note that this was itself a Bill also dating back some 4 years: Criminal Justice (Spent Convictions and Certain Disclosures) Bill 2012).
NATIONAL VETTING BUREAU (CHILDREN AND VULNERABLE PERSONS) ACTS 2012 – 2016
With the enactment and operation of the legislation, the landscape has changed fundamentally for those organisations and individuals responsible for Garda Vetting as it has been known to date.
One piece of legislation I haven’t gone into in detail in this particular essay is the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 that came into force in 2012. We’ll be looking at that in another essay at a later date but I mention it here as it, too, is an important part of what is intended to be a coordinated suite of legislative responses to the Ryan Report, in conjunction with with the National Vetting Bureau Acts (Children and Vulnerable Persons) 2012 to 2016, the Children First Act 2015 and the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.
I hope you will continue to join me on our whistle-stop tour of the Act next week, so that collectively we can come to a better understanding of the Act, its meaning, and its consequences, whether intended or unintended.