Section 24 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 - the new Irish vetting legislation, known until now as Garda vetting – is, arguably, one of the most important milestones along the road to changing and improving the approach to child protection in Ireland.
It’s all well and good having laws, and a so-called ‘new suite of child protection legislation’.
But what happens if those laws simply remain dots and dashes of ink on a printed page, and never come to life?
What happens if they’re not enforced?
Well, one consequence is a loss of credibility.
Now, the word ‘credibility’ comes from the Latin word credere, which is to do with belief.
If people believe that a piece of legislation may say one thing, but their belief is that nothing is going to really happen if they ignore the legislation, then a consequence is a loss of credibility – or faith in – the underlying legislation.
SECTION 24 OF THE VETTING LEGISLATION
And that’s where section 24 of the vetting legislation comes in, introducing a new personality onto the landscape of child protection and vetting: the statutorily created role of ...
Section 24 creates a number of significant of new statutory rights to a person appointed as a Compliance Officer.
It creates the ability for the Compliance Officer to:
- 1. enter the premises of a relevant organisation
- 2. inspect the premises of a relevant organisation
- 3. inspect books, records, documents
- 4. copy those books, records, documents
- 5. remove any books, records, documents
- 6. detain those books, records, documents
- 7. demand assistance and information
- 8. require the production of additional documents or records
- 9. examine senior personnel
- 10. require senior personnel to answer the Compliance Officer’s questions
- 11. require senior personnel to make a declaration of truth to the Compliance Officer
- 12. require that the Compliance Officer be accompanied, in the carrying out of their duties, by members of Garda Siochana, or other Compliance Officers
Finally, under section 24 of the vetting legislation, two new criminal offences are created, raising the prospect of a criminal prosecution against organisations and their directors, senior officers and manager who obstruct, interfere with, or otherwise impede a Compliance Officer in the discharge of their statutory duties.
CREATION OF THE ROLE OF THE COMPLIANCE OFFICER
The Compliance Officer is a role to which a person is appointed by the Chief Bureau Officer of the Nationl Vetting Bureau. It’s not a singular position, but one envisaged by the legislation to comprise a number – a team – of persons.
APPOINTED UNDER WARRANT
A warrant of appointment is the official document presented by the President of Ireland to certain persons upon appointment to important offices of the state.
And a Compliance Officer under the vetting legislation is furnished with a warrant of appointment, which is an indicated of the importance attached to the new role.
(They’re also going to be required to furnish the warrant on demand if they are looking to exercise their rights as a Compliance Officer).
THE RIGHT TO ENTER & INSPECT
The Compliance Officer has the statutory power to enter and inspect any premises belonging to a relevant organisation (at all reasonable times).
Note that under the legislation there’s no longer a requirement for this to be done ‘on reasonable notice’, only that that this right be exercised at all reasonable times.
So, this means that a Compliance Officer can turn up and demand entry without any prior notice being given to a relevant organization: a spot-check inspection.
THE RIGHT TO INSPECT & COPY RECORDS
Once inside the premises, the Compliance Officer is entitled to inspect (look at) any books, records or other documents where the Compliance Officer considers that they are related to the vetting legislation. The Compliance Officer can then take copies of any such records.
THE RIGHT TO REMOVE & DETAIN RECORDS
Having established that there are records or documents of interest, the Compliance Officer is empowered to remove them from the premises and retain them for such time as they consider necessary.
THE RIGHT TO DEMAND OF PERSONS INFORMATION & ASSISTANCE
If the Compliance Officer considers that there are gaps or inconsistencies in any of the information or documents reviewed, the Compliance Officer is empowered to required that the relevant person furnishes them with the information sought (with the caveat that this information must be reasonably required).
THE RIGHT TO REQUIRE PRODUCTION OF DOCUMENTARY RECORDS
The Compliance Officer can now require that books / documents / records be produced, so long as the request is one which is reasonable in terms of allowing the Compliance Officer to be able to carry out their statutory functions.
Possession, procurement or control: three separate legal concepts, all of which relate to someone’s ability to get access to documents that the Compliance Officer has decided are of interest to them.
- Possession: nice and clear – the person has the documents, and must produce them to the Compliance Officer
- Procurement: slightly less clear – this means that while the document may not be in the person’s possession, the person can take steps to cause them to be produced
- Control: closely allied to procurement – this means that the person has control of these documents, even if they are not directly in their possession, and even if they argue that they can’t ‘procure’ them immediately.
THE RIGHT TO EXAMINE & INTERVIEW
If we’ve given the impression that all the Compliance Officer is interested in is documents and records, then we’d better rectify that impression now. They have the power to:
- Examine any person they have reasonably believe is the senior person in charge; and
- Require that that person answer questions that the Compliance Offer asks; and
- Require that that person essentially swear on oath as to the truth of any information given
GARDA SIOCHANA PRESENCE
Did we mention the team side to this? The Compliance Officer doesn’t operate in a vacuum, and is entitled to basically ask for team ‘back up’ in the form of either other Compliance Officers; or, if the situation warrants it, members of the Garda Siochana.
LIMITATION ON RIGHT OF ENTRY
Presumably for constitutional reasons, the Compliance Officer is specifically statutorily prohibited from entering a dwelling (i.e. a person’s home) unless they have the consent of the occupier.
Interestingly, when we commented on the original vetting bill in 2011, we noted in our written submission to the Oireachtas Joint Committee on Justice, Defence and Equality (see pp.23-29 of the First Report) that there was a potential incentive for non-compliant organisations to deliberately ensure that their information is stored in dwellings (which the vetting legislation now calls what were then labelled ‘private residence’.
NEW CRIMINAL OFFENCE: OBSTRUCTING, INTERFERING, IMPEDING
And yes, there are penalties for breach of the section 23(6) criminal offences that include fines or, potentially, a term of imprisonment; or both.
Now, I can hear the whispers of the sceptics murmuring at the back, ‘sure, that’s hardly likely ever to apply to us now, is it?’.
And, to be sure, the process of the application of the rule of law – across a wide spectrum of legislative initiatives – has a somewhat chequered history.
All we’ll note is this: in the future we’ll be looking at some case studies of organisations that find themselves unwittingly in the cross hairs of a Compliance Officer of the National Vetting Bureau.
Suffice to say, for any organisation that wants to rely upon the way things were done in the past, and yet not be the subject a future case study, well, it’s probably appropriate to repeat the oft-repeated investment language:
WARNING: Past peformance is not a reliable guide to future performance
Irish legislation in the area of child protection has for a long time been considered toothless.
Section 24 of the vetting legislation provides teeth to the new legislation.
Section 24 of the vetting legislation creates new rights that strengthen the ability of the state’s primary body involved in vetting – the National Vetting Bureau – to ensure compliance with the statutory vetting regime.
With the creation of the Compliance Officer, it is now considerably more difficult for organisations to prevaricate, obfuscate and procrastinate when it comes to co-operating with the statutory authorities in relation to their compliance with vetting requirements.
And with the creation of the new criminal offences in section 24 (6) (a) and (b), Compliance Officers have the right to expect that the prosecuting authorities will support them in their statutory functions, by bringing prosecutions against individuals and organisations who obstruct, interfere with, or otherwise impede the Compliance Officers in the discharge of their statutory duties.