The National Vetting Bureau (Children and Vulnerable Persons Act) 2012 has still not been implemented, although it was enacted three years ago.
It was introduced to put garda clearance for people working with youngsters on a statutory footing. The department said the delay, and a review of legislation, were necessary following a landmark privacy case in the UK.
Justice Minister Frances Fitzgerald said the amendments are ready to go before the Oireachtas in two weeks.
However, senator Ivana Bacik criticised the delay, describing it as “foot-dragging”. Reid Professor of criminal law at Trinity College Dublin, Ms Bacik said: “This is a dead duck until it is commenced, a worthless document. There is no excuse for this length of delay in amendments to legislation.”
Public law barrister Niall Nolan said commencement of the act was well overdue and people deserved to have their rights “fully crystallised”.
He said: “The Vetting Bureau legislation is there with the crucial aim to protect children and vulnerable persons. Nothing could be more vital than the protection of children. It is a difficult one to navigate. The protection of privacy is also vital; it is there in the European Convention on Human Rights.”
In the UK case that triggered the review, an individual successfully claimed that blanket disclosure of all offences was in breach of Article 8 of the European Convention on Human Rights: The right to respect for private life. The case related to a man who received two warnings from police when aged 11 in connection with the theft of two bicycles. The warnings later came to light when he went for a job with a football club, aged 17. He had no criminal convictions.
After Britain’s Court of Appeal and Supreme Court upheld the man’s claims, the department added an “administrative filter” in respect of all disclosures made by gardaí to cover that right.
The filter means minor offences dealt with in the district courts will not be revealed during the vetting process, provided they are over seven-years-old. They include the likes of motoring or public-order offences.
In all cases, offences against the person, sexual offences and indictable convictions will be disclosed. Non-convictions — where a person was charged with an offence but not prosecuted — will be disclosed if there are concerns that the person may harm a child or a vulnerable person.
The spokesperson said that the vetting office in Tipperary was operational and conducting vetting in accordance with the provisions of the act.