Vetting disclosures should be on a case by case basis
The Irish Human Rights Commission (IHRC) today published its Observations on the National Vetting Bureau (Children and Vulnerable Adults) Bill 2012 ("The Vetting Bill"). The IHRC welcomes the establishment, on a statutory basis, of mandatory vetting for all people working with children and vulnerable adults. It called on the Government to harmonise the provisions of the Vetting Bill with the Criminal Justice (Spent Convictions) Bill 2012 and to refrain from taking a blanket approach to the disclosure of criminal records including pending prosecutions. The Observations were submitted to Mr Alan Shatter TD, Minister for Justice, Equality and Defence.
Mr Des Hogan, Acting Chief Executive of the IHRC said
"The IHRC welcomes the publication of the National Vetting Bureau (Children and Vulnerable Adults) Bill 2012 replacing the current system, which is largely unregulated. The Bill will put in place a comprehensive system of Garda vetting with a clear statutory basis. It forms a crucial part of the wider measures required of the State to protect children and vulnerable adults."
Mr Hogan continued
"However, the IHRC is concerned that the Bill may not fully take account of the human rights of people being vetted. More safeguards should accompany the handling of criminal records. We recommend that, rather than a blanket approach to disclosing criminal records to employers and other relevant organisations, the Vetting Bill should take a more proportionate approach. This would require that decisions on a vetting disclosure be taken on a case by case basis with due regard for the public interest served by the disclosure, when balanced against the right to privacy of the person to be vetted. Thus people convicted of minor offences in the past where there is no correlation with the proposed employment should have the right notto have that minor offence disclosed to an employer."
The IHRC previously made Observations on the Criminal Justice (Spent Convictions) Bill 2012, which were submitted to the Minister. That Bill correctly makes a number of albeit modest proposals to permit individuals with a minor criminal conviction, after the lapse of a prescribed period of time, to have that conviction deemed "spent", and therefore would not be obliged to disclose the conviction to a prospective employer. Mr Hogan said
"The IHRC is concerned that there appears to have been no attempt to bring the proposed legislation on Vetting and Spent Convictions into line with each other. We have a very specific concern that the progressive approach to the rehabilitation of ex-prisoners under the Spent Convictions Bill may be negated by the operation of the Vetting Bill. The IHRC strongly recommends that the Minister ensure that the two pieces of proposed legislation operate in harmony with each other, rather than conflicting in their objectives. At present the Vetting Bill make no reference to convictions that may be deemed "spent", and the IHRC considers this to be a significant flaw in the current Vetting Bill."
Mr Hogan concluded
"The IHRC is heartened that a number of its previous recommendations in relation to human rights protection were taken on board when drafting this Bill. It is a significant improvement on the original Heads of Bill published by the Minister. A small number of important amendments which would address significant concerns about the right to privacy, the presumption of innocence, and adherence to fair procedures are all that is required to ensure this legislation meets current human rights standards."
Key Recommendations
- The Criminal Justice (Spent Convictions) Bill 2012, and the Vetting Bill should be brought into line with each other and the relationship between each Bill clearly stated;
- All decisions on whether to disclose criminal records by the National Vetting Bureau should be made on a case by case basis and an appropriate balance struck between the public interest served by the disclosure, and the right to privacy of the person subjected to vetting;
- In order to respect the presumption of innocence and the requirement of forseeability in relation to one’s actions, there should be no blanket approach to disclosing pending prosecutions in the course of the vetting process. Such data should only be disclosed in accordance with the procedures in the Bill which govern "Specified Information";
- There should be absolute clarity as to the obligation on education providers to require that students and trainees be vetted. This would provide certainty for prospective students in relation to whether they can complete the course or traineeship, and what the consequences are if they have a previous criminal record. Vetting should not be required unless participating in a course of education and training will involve contact with children and vulnerable adults.
ENDS/
A spokesperson is available for comment.
For further information please contact:
Fidelma Joyce, IHRC Tel: 01 8589601
Notes to Editor
Specified Information
- The Vetting Bill places the work of the current Garda Vetting Unit on a clear statutory basis, and makes provision for mandatory vetting of all those who have contact with children and vulnerable adults in the course of their work, or in various other circumstances. The Bill requires the disclosure of all criminal records regarding the person, which includes all previous criminal convictions and any prosecutions pending. In addition the Bill makes provision for the gathering and disclosure of "Specified Information", subject to a number of procedural safeguards. Specified Information is information received by the National Vetting Bureau from Garda inquiries which gives rise to a justifiable concern that the person may pose a risk to children or vulnerable adults.
- The IHRC published its Observations on the Criminal Justice (Spent Convictions) Bill 2012 in June 2012.