Nov. 08' - Arthur Duignan, Garda Vetting and The Arts
Summary
Practice.ie asked Arthur Duignan, Assistant Director and Authorised Signatory of Create, the national development agency for collaborative arts, to outline procedures involved in Garda Vetting for artists. The following article provides an overview of the vetting process as it applies to the arts in Ireland. View the print-friendly version of this article.
Garda Vetting and The Arts by Arthur Duignan
Introduction
There are good reasons why artists should understand the ‘criminal record disclosure certification process’, more commonly known as ‘Garda vetting’. In any context where an artists’ work is expected to involve significant contact with children, young people or vulnerable adults, they will be asked by the employer / host organisation to apply for Garda vetting. This will apply regardless of whether or not the artist is working full time, part time and/or in a voluntary or student placement capacity.
As a key element in the state’s provision for the protection and welfare of potentially vulnerable persons, the increasing availability of Garda Vetting is a welcome development. As an administrative reality, it is a complex and bureaucratic obligation that brings with it a great deal of uncertainty about how ‘clearance’ is to be achieved; who will take responsibility, exactly when vetting is required, and what it provides in terms of legal protection, if anything at all, for the artist or their employer/host organisation.
Garda Vetting is particularly common in the context of collaborative arts practice, including work with potentially vulnerable groups of people, and initiatives / projects / residencies that take place in arts venues, cultural institutions, health centres, and residential care and detention settings and other community facilities. Any artist expecting to work in these settings should be prepared for vetting to become a standard component of the recruitment process.
Of course, criminal record checks on their own will not ensure an applicant’s suitability for a position. There is still a duty of care on the employer to check references and CVs, which provide vital information that is not available through vetting, and to ensure adequate supervision and training post-appointment. Employers should only use vetting appropriately, and not indiscriminately, and if a position is deemed to require vetting this should be made clear in any advertisement or job brief.
Background to Garda Vetting
After publication of the Murphy Report in 1998, which investigated the sexual abuse of young swimmers, the courts determined that organisations could, in certain situations, be held liable for failing to protect persons in their charge. The subsequent national guidelines for protection and welfare (Children First, Dept Health + Children, 1999) made it clear that organisations offering relevant services have a moral obligation to provide the highest possible standard of care and may be legally responsible in the event of a failure to offer adequate safeguards.
To reduce any potential civil liability, employers must be seen to have taken ‘all reasonable steps’ to ensure guidelines are in place and properly implemented. In developing protection policies, the employer has a dual responsibility - in respect of the service user and the employee. In terms of civil liability, however, the primacy of the vulnerable is the central concern. It could well be the case that aversion to risk and liability is fuelling the demand for vetting more so than genuine concern. The guidelines indicate vetting may be required in situations of substantial or unsupervised access. In practice, this is being interpreted to include any kind of regular contact. There is a perception in some quarters that vetting can provide some kind of PR value or quality assurance.
The legal requirement for employers to obtain a ‘disclosure certificate’ from An Garda applied initially to new employees / contractors in the Health Service, and some agencies that it funded. It has gradually extended to include people taking up employment / providing services in local authorities, schools, care units/homes, residential centres, childcare services, youth work, sports, private security, work with homeless persons, and to arts initiatives in these and other contexts. Vetting has become essential to organisations that act ‘in loco parentis’ (‘in the place of parents’). The extension of its availability into these areas constitutes a major step forward for protection in Ireland.
A dedicated Garda Central Vetting Unit (i) (GCVU) was established in 2002 to deal exclusively with vetting. In 2006, it was significantly strengthened to facilitate the expansion of availability mentioned earlier. The GCVU provides the only official vetting service in the Republic - An Garda do not provide vetting at a local level. Vetting is not freely available - it can only be undertaken for an employer, and applications must be processed through an organisation that is already registered with the Vetting Unit to act as an intermediary for a particular sector or group.
Vetting operates independently of an individual’s rights under Freedom of Information law and it is not the same as getting a Certificate of Character, which can sometimes be required to work or set up a business abroad. Neither of these are substitutes for vetting and employers that insist on these kinds of checks may in fact be in breach of employment laws and/or the individual’s constitutional right to privacy or to earn a living.
(i)The Garda Central Vetting Unit is located in Thurles, Co. Tipperary and can be contacted at 0504 27300.
So, what is Garda Vetting?
Garda Vetting is a procedure through which An Garda is asked, with a person’s permission, to confirm whether or not that individual has been convicted of a crime. Employers use the procedure to ensure that individuals convicted of abuse or other crimes are not employed or offered other positions of responsibility for work with children, young people or vulnerable adults.
The Vetting Unit has complete access to criminal records in the Republic of Ireland and limited access in Northern Ireland and the UK. In Northern Ireland, under the Protection of Children and Vulnerable Adults Order 2003, there are systematic checks of convictions and other relevant matters. While the focus is on protecting children and vulnerable adults, there are also safeguards and due processes for those being vetted, including the right to appeal. An agreement between Ireland and Britain on sharing information on sex offenders is thought to be close and while this is welcome the situation in the two administrations is quite different.
In Ireland, it is an offence to apply for a job or to offer a service which involves access to children or mentally impaired people without first informing the prospective employer of any conviction for a sex offence. The Irish system has over 900 individuals listed on an offender register but does not have adequate monitoring mechanisms. The UK has sophisticated monitoring and supervision of the movement of sex offenders and others known to be a danger and its system includes hard information (of convictions) as well as soft information (of suspicion of posing a risk e.g. cautions, allegations, inquiries, arrests, and charges outstanding or pending). There have been calls recently to extend the UK model to Ireland and we will hear more about this in the debate on a constitutional amendment on children’s rights.
Increased demand of Garda vetting causes delays
To date, the GCVU has registered a number of agencies in the voluntary and statutory sectors to act as vetting organisations. It is estimated that the overall demand for vetting will reach over 400,000 applications each year, significantly higher than the number currently being processed. A lack of capacity partly explains why it takes so long – between 4 and12 weeks - to return a search result. In the future, the GCVU hopes to strengthen practices in relation to both overseas clearance and secure electronic transfer procedures to reduce the timescale for applications.
As part of the GCVU’s registration process, an agency providing vetting services must nominate an Authorised Signatory to liaise with An Garda and manage the workflow. Once approved, s/he undergoes induction and thereafter receives and checks application forms coming from employers and forwards them to the Vetting Unit for certification. When the results come back, s/he provides confirmation to the employer. Registration also requires compliance with a Code of Practice that covers Data Protection and operates within a natural justice framework.
The vetting provider is responsible for the security and safeguarding of any records that are kept, under the strict provisions of Data Protection laws. This is reasonable, given the sensitive and personal nature of the information that has to be provided by the applicant and the individual’s right to privacy. Records are generally destroyed once the employer is satisfied with the veracity of the results and has either provided ‘clearance’ for the individual or, if a disclosure is deemed too serious, withdrawn the offer of work. Within a natural justice framework, decisions should be made after any matter arising has been discussed with the applicant and fair procedures have been followed.
Garda Vetting and the Individual
Responsibility for organising Garda vetting lies with the organisation– the individual may not apply. Every organisation has to decide for itself in the context of the job and its own policies whether or not a position requires vetting. Until the law is clarified, and this could be long after the proposed constitutional amendment, there is no clarity on how this should operate - different organisations and sectors are implementing policies differently. And there is no clarity about what should happen in situations where artists are providing private tuition directly.
There are no guidelines on how to determine whether an arts initiative, or an artist, is an organisation or employer. This is a grey area for freelance professionals engaged on temporary, self-determined or independent projects and situations. Many artists ‘engage’ others in their work, including through mentor relationships, and it is not clear whether this constitutes being an employer. Registration as an employer with the Revenue Commissioners will yield an Employers Number - a clear indication of intent - but separate legal status is not provided by simply being ‘self-employed’, or even by registering a Business Name.
In making an application for vetting, it is the individual that completes the application form. The applicant must provide details of every address they have lived at, from birth, including time away from home, e.g. while at college and periods spent abroad. This can be difficult as details fragment in time and people are increasingly mobile. The individual may also be asked to seek vetting from countries in which they have lived. There is no general procedure covering these situations. A new form is thought to be in the pipeline which will introduce the additional necessity to provide proof of identity.
The applicant must disclose any convictions in a court of law. This disclosure is matched against the official records and the results are disclosed to the employer, regardless of their relevance to the proposed work or the gravity or timing of the crime. It is up to the employer to conduct their own risk assessment and determine what constitutes a risk. There are no guidelines, but the individual might expect certain factors - the significance of a disclosure, self-disclosure or lack thereof, subsequent work and rehabilitation record - to be taken into account.
The certification process and vetting results are not portable for the individual. Each new employer must apply separately, even if engaging an individual already vetted elsewhere. Vetting is also time sensitive – it is only valid at the time it is done. This means a fresh application may be required at another time by the same employer. There is no consensus or guideline on this issue; but An Garda recommends rechecking each 2 to 3 years, depending on the circumstances.
Many university courses (e.g. medicine, health, social work, education) require students to undertake placements that bring them into contact with vulnerable people. Some colleges ensure that only suitable candidates are allowed to undertake these programmes and use Garda Vetting to help decide. Applicants to courses that could be precluded following vetting from gaining work experience are advised to disclose this before proceeding with a college application.
Garda Vetting and the Arts
It is Arts Council policy (ii) that any organisation it supports, which provides services for children or young people, must have in place protection and welfare policies and procedures. In 2007, it provided revenue funding to over 150 arts organisations involved in this area of work (Arts + Education Directory, the Arts Council, 2007) through education and outreach services, workshops, artist’s commissions and residencies. It encouraged these groups to adapt the Council’s policy guidelines for their own staff and situations. In response to consultation with the sector the Arts Council is developing guidelines for arts practice with children and young people. A key to the Council’s ability to take these initiatives is the creation of a staff post (part-time) focused on protection and welfare.
To date, a number of arts organisations have registered with the Garda Vetting Unit and others are understood to be in discussion. The registered organisations include Create, The Ark, the National Association for Youth Drama (NAYD) and Poetry Ireland. Poetry Ireland uses vetting in the context of the Writers in Schools scheme, which it manages for the Arts Council, and is extending the service to other organisations. NAYD processes applications for affiliates in youth drama/theatre, but not for its general membership.
Create, the national development agency for collaborative arts, is offering a more open service and is inviting arts organisations that engage artists to work in collaborative arts contexts with communities of interest and/or place to affiliate(iii). Create can also advise employers and individual artists in relation to the implications of vetting. It hopes to develop its policies and guidelines to a point where the arts sector adopts a standard approach and a sector-wide Code of Practice on Garda Vetting. This would allow the arts to make a significant contribution to the states protection of vulnerable persons.
(ii) Copies of the Arts Council’s publication: Guidelines for the Protection and Welfare of Children and Young People in the Arts Sector are available at: www.artscouncil.ie/Publications/ChildGuidelinesEnglish.pdf
(iii) Details of Create’s Protection + Welfare Policies and the Affiliate Vetting Service that it provides are available online at www.create-ireland.ie or by phoning 01 4736600.
About the Author
Arthur Duignan is Assistant Director and Authorised Signatory of Create, the national development agency for collaborative arts. Arthur has been involved in many innovative arts and cultural initiatives since publishing the groundbreaking Bull, The Magazine in the 1980s. He later worked at Project Arts Centre and was active in Temple Bar Development Council. Arthur has lectured on the BA in Arts Management (IADT) and is a board member of Alternative Entertainments, Axis Arts + Community Resource Centre, and the Dublin Food Co-Op. He is also managing editor of Create’s Irish Fundraising Handbook.