Response to the Northern Ireland Office’s consultation on Safer Recruitment in Northern Ireland

Children’s Law Centre
May 2005


INTRODUCTION

The Children’s Law Centre is an independent charitable organisation established in September 1997 which works towards a society where all children can participate, are valued, their rights respected and guaranteed without discrimination and every child can achieve their full potential.
We offer training and research on children’s rights, we make submissions on law, policy and practice affecting children and young people and we run an advice/information/representation service. We have a dedicated free phone advice line for children and young people called CHALKY and a youth advisory group called Youth@clc.
Our organisation is founded on the principles enshrined in The United Nations Convention on the Rights of the Child, in particular:
• Children shall not be discriminated against and shall have equal access to protection.
• All decisions taken which affect children’s lives should be taken in the child’s best interests.
• Children have the right to have their voices heard in all matters concerning them.
From its perspective as an organisation, which works with and on behalf of children, both directly and indirectly, the Children's Law Centre is grateful for the opportunity to make this submission to the Northern Ireland Office and to offer comment on the “Safer Recruitment in Northern Ireland” Consultation document.
In making our response to the “Safer Recruitment in Northern Ireland” consultation document the Children’s Law Centre has decided to focus on our own areas of expertise in an effort to provide constructive comment which will contribute to the operation of the new system of pre-employment checking in Northern Ireland. Because of this we have chosen to comment on specific areas of interest in this format rather than using the response form provided at Appendix C.

CONSULTATION
We believe that pursuant to the obligations imposed on public authorities by Section 75 of the Northern Ireland Act 1998, the consultation process in relation to any policy which affects children and young people should have inbuilt mechanisms to address the need to consult with children and young people.
We appreciate that the protection of children raises complicated concerns in relation to procedure, but in our view, there are a number of issues where older children and young people may have an input.
The Children’s Law Centre has recently carried out consultation with young people on a number of issues including the Northern Ireland Children’s Commissioner’s Priorities, the Draft Children’s Strategy and the Bill of Rights. The Children’s Law Centre is however a small voluntary organisation and we are unable to facilitate consultation on all new proposals for policies or legislation. We would therefore urge the NIO to have regard to the need for meaningful, representative, direct consultation with children and young people on this occasion and in future.
INTERNATIONAL STANDARDS

The Children’s Law Centre very much welcomes the commencement of Part 5 of the Police Act 1997 as a means of reforming, improving and modernising the present system of employment checking in Northern Ireland and the increased protection which it will ensure for children and young people in Northern Ireland. In our response to the consultation on the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003, we recommended that Part 5 of the Police Act be commenced in order to afford children and young people the highest means of protection possible. Article 19 of the United Nations Convention on the Rights of the Child (UNCRC) states that,

“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
Article 3 of the European Convention on Human Rights as incorporated by The Human Rights Act 1998 also requires states to provide effective legal mechanisms to protect children from inhuman and degrading treatment.
This is compounded by the UNCRC Committee’s Concluding Observations (2002) where they expressed deep concern at the levels of violence, abuses and child deaths occurring on an everyday basis. The Committee made a series of relevant recommendations, including establishing a system of statutory child death enquiries, a co-ordinated strategy for the reduction of child deaths, legislative safeguards for children in alternative care settings, including private fostering, public education campaigns, effective monitoring, investigative and prosecution procedures and the provision of support for victims. Lord Laming’s inquiry into the death of Victoria Climbie highlighted a number of serious deficits in the current child protection services, some of which the commencement of Part 5 of the Police Act will address in the Northern Ireland context.

CURRENT SYSTEM

We have a number of serious concerns with the current system for carrying out pre-employment checks in Northern Ireland, including the gaps in information provided using the system and the operation of a dual system between the Department of Health Social Services and Public Safety and the Department of Education. We are very pleased to note the fact that the commencement of Part 5 of the Police Act will secure a legislative basis for the disclosures which currently take place and clarification on the current system which is governed by common law, custom and practice. The Children’s Law Centre has used the present system of pre-employment checking since its inception in 1997 and agrees with the assertion at 3.17 that this system is cumbersome, fragmented and overly bureaucratic, with seasonal drawbacks, with particular reference to delays in summer due to the increased volume of checks being carried out as a result of summer scheme projects. From an organisational point of view, we welcome the removal of these additional and unnecessary burdens as well as the greater certainty and improvements which the new statutory system will ensure.

CROSS-REGIONAL HARMONISATION

There is also an additional incentive in the commencement of Part 5 of the Police Act in Northern Ireland in that it will go some way to ensuring cross-regional assurances and confidence in pre-employment checking systems across the UK. While the harmonisation of checking systems across the UK is very welcome, we do however have some concerns in relation to compatibility with the Republic of Ireland. It is clear that there needs to be a comprehensive and reliable system of vetting in place in the North and South of Ireland which is established through close co-operation in order to ensure that systems are compatible and easily accessible.

In terms of the UK context, we note that a number of developments and amendments have been made to the system as it operates under Part 5 of the Police Act in the rest of the UK. These amendments will not operate in Northern Ireland as the proposals only aim to commence Part 5 itself and not the amendments. This is concerning in that while there will be steps taken towards cross-regional harmonisation with the commencement of Part 5, Northern Ireland will still be incompatible with the rest of the UK to some degree and at a disadvantage as a result. As the consultation document states a 3.10,

“…a key risk is that inconsistencies in the type and scope of information disclosed will occur between Northern Ireland and the rest of Great Britain.”

We urge the Government to learn from the experiences of the rest of the UK and to implement the amendments to Part 5 in Northern Ireland to ensure the highest degree of protection and consistency on a cross-regional basis.

NON-CONVICTION INFORMATION AND WITHDRAWN PROSECUTIONS

We very much welcome the fact that Part 5 of the Police Act will allow for the disclosure of non-conviction information in certain circumstances and withdrawn prosecutions in the case of enhanced disclosures, whose primary use will be in relation to persons who are regularly involved in caring for, training, supervising or being in sole charge of people under 18 or vulnerable adults. This is a substantial development in ensuring the utmost level of protection is afforded to children and young people in Northern Ireland.

UMBRELLA BODY

We wish to register our concerns about the proposed establishment of an umbrella body which can act on behalf of other organisations entitled to ask exempted questions as suggested at para 4.10. It is our experience that in-house responsibility for carrying out pre-employment checks is much more effective and gives the correct degree of assurance to all parties involved. We believe that there are a number of uncertainties which the use of a third party organisation may introduce to the system. Examples of these include controlling how information is used by the umbrella body as well as the issue of liability should information be fraudulently or improperly used. In addition to this, it may be onerous or overly bureaucratic to use a third party organisation to carry out checks, it may be difficult to secure consent to carry out checks through a third party organisation and most worryingly, it may be difficult to ensure the correct level of independence and confidentiality of an organisation which is unconnected to that which requests the information. While we support the statement at para 7.2 that the disclosure process will be strictly controlled to ensure that certificates are only received by those for whom they are intended, we believe that this will be best achieved without use of a third party organisation. There is also an issue around additional cost which we presume will arise as a result of third party, umbrella body intervention which has not been explored in the consultation document.

MODEL FOR DELIVERY

We commend the NIO for the robust analysis of options for implementation to ensure the most effective model for delivery is put in place in chapter 6 of the consultation document. We would welcome further information on the proposed voluntary sector subsidies suggested at para 6.16. It would be useful to clarify whether these subsidies will apply to voluntary sector paid employees or purely to volunteers and how these subsidies will be financed, whether through sourcing additional funding or through greater cost to other sectors carrying out pre-employment checks. We also feel that while the establishment of a central registered body to support disclosure applications from the voluntary sector may be useful for those organisations which lack sufficient administrative capacity to cope with the new system as suggested at para 7.13, we are of the view that use of the central registered body should be optional.

The preferred option for implementation appears to be Option III: Enhancing Existing Systems. While this option is the least expensive, we would urge the NIO to place most emphasis on effectiveness and the efficiency of operation. While the continued close involvement of the PSNI in this option is seen as a further strength, we have some concerns around the independence of the PSNI and recommend that robust mechanisms be put in place to ensure the system operates as independently as possible. It is also worrying to note that this option may be complex to operate and it may be substantially different to the systems currently in operation in the rest of the UK. This will result in further issues of compatibility with the rest of the UK and as a result we recommend that these differences be minimised where possible.

TRAINING, MONITORING AND REVIEW

There will be an obvious need for the provision of training on the new arrangements generally and in relation to the operation of the new legislation and surrounding procedures. We would welcome some information on how this training will be provided and whether the NIO is preparing to meet this need. We welcome the commitment to monitoring and reviewing the system throughout its lifespan in Northern Ireland and recommend that procedures for remedial action be in put in place to ensure that any failings in the system or in the operation of the new arrangements are dealt with immediately and effectively.


CONCLUSION
The Children’s Law Centre is delighted to have the opportunity to comment on the “Safer Recruitment in Northern Ireland” consultation document and very much welcomes this consultation process, which will result in affording increased protection to our children and young people. We look forward to working with the NIO and hope that our comments have been constructive and useful. We are more than happy to meet with representatives from the NIO to discuss anything in this response and wish to be kept informed of progress in the development of the implementation of Part 5 of the Police Act and look forward to the issues raised in this response being addressed.