In this essay, the next in our series on the National Vetting Bureau (Children And Vulnerable Persons) Acts 2012 To 2016 - the new Irish vetting legislation, known until now as garda vetting – we are going to look at the National Vetting Bureau’s register of relevant organisations.
We ask what makes an organisation a ‘relevant organisation’. We will explore which relevant organisations are deemed to to be registered on the commencement of the Act on 29 April 2016. We will look at which organisations are not required to comply with this requirement, and what they are supposed to do instead. We explore the discretion of the National Vetting Bureau as regards the registration and de-registration of relevant organisations. Finally, we’ll review the new criminal offence created for breach of the requirement for a relevant organisation to register; the two-stage defence to the offence; and the process for actually registering an organisation with the Bureau.
1. ESTABLISHMENT OF THE REGISTER OF RELEVANT ORGANISATIONS
This is the duty upon the bureau to create and maintain and a register of relevant organisations.
This is the duty on a relevant organization to ensure it submits an application to the National Vetting Bureau’s register. But hold on…
2. REMIND ME: WHAT MAKES AN ORGANISATION, A RELEVANT ONE?
Let us refresh our memories as to what comprises a relevant organisation. In No. 26 of our 34 Terms You Should Know: Garda Vetting & The National Vetting Bureau (Children and Vulnerable and Persons) Acts 2012 to 2016 we see the definition in detail:
Hold that thought there. So in fact a relevant organization you have three potential identities:
3. 3 TYPES OF PERSONS
- A person (you or me)
- A body corporate (i.e. a company or a charity)
- An unincorporated body of persons (i.e. a collection of individuals essentially operating as one e.g. Tom, Dick and Harry operating as ABC organisation. For a very helpful deeper dive into the term, see here).
The first thing that an organization needs to know is, does that fall within one of these three legal identities? If it does, then they next need to ask themselves if they perform any of the following four functions:
AN EMPLOYING ORGANISATION?
Is their organization one which:
Remember now that under No. 27 of our 34 Terms You Should Know, relevant work or activities is defined as work involving children or vulnerable adults, where that work falls under the categories of work defined in Parts 1 & 2 of Schedule 1 of the Act.
ENTERS INTO 3RD PARTY CONTRACTS?
So let’s assume that our organization undertakes relevant work activities, but doesn’t actually employ anyone. The next question is, is their organization one which:
So for example this would be contracting with a third party for that third party to provide the relevant work or activities (so even though it’s not directly provided by the organization, they’re responsible for the person providing the services, even where it’s done at an arm’s length relationship with a third party contractor providing those services).
PERMISSION BASED RELATIONSHIPS?
But perhaps our organization doesn’t enter into third party contracts for some reason. Is it off the hook from registering? Not quite. The next question is has to ask itself is this. Is their organization one which allows (the language of the legislation is ‘permits’) someone to do the job providing the relevant work or activities on their behalf?
So what does that look like? What is ‘permitting’ another person to do something on behalf of the relevant organization? Well, broadly speaking, permission based work is something that specifically falls outside contractual work (work entered into by virtue of a contractual relationship between the parties).
So we can say that is something akin to the volunteer relationship, where an organization permits or allows another person to carry out activities or work on the organisation’s behalf, but does not have a contractual relationship in place to govern the working of that relationship (whether directly as an employer-employee, or in a third party contractual relationship).
EDUCATION OR TRAINING PROVIDER?
But maybe in this instance the relevant organization doesn’t have employees undertaking the relevant work or activities, doesn’t engage with third party contractors to undertake the work, and doesn’t have a team of volunteers who have permission to do the work or activities on their behalf.
The next question the organization needs to ask itself is this. Is the organization one which:
So the key here is to ask if the organization is involved in education or training including internships or placements where a ‘necessary part’ of the placement involves ‘participation’ in the relevant work or activites.
PRIVATE ARRANGEMENT EXEMPTION
Snuck into the bottom of this section, almost innocuously, but critically, is the exemption for ‘an individual who does any of the matters’ [employment, third party contractor, permission based relationship, education/training provision] ‘in the course of a private arrangement’.
The question that the private organization must ask yourself now is, is this work carried out in the course of private arrangement?
So what is a private arrangement? Remember now that under No. 22 of our 34 Terms You Should Know:
Let’s assume then that an organization doesn’t fall into any of the criteria set out so far. Does that mean it’s exempted from the requirement to register as a relevant organization? Let’s read on and find out. Well, no, as it turns out, there are more hurdles to jump over before an organization can be exempted. A person will be required to register if they carry out an employment agency business that’s involved in placing people in relevant work or activities:
Furthermore, state agencies involved in the whole area are, perhaps unsurprisingly, going to be required to register, especially where they are:
Lastly, but by no means least, organisations that act as umbrella type organisations on behalf of a number of smaller organisations, are required to register. That is to say, an organization:
(d) who represents for the purposes of the vetting procedures under this Act, another person, trade, profession or body, organisation or group or other body of persons that undertakes relevant work or activities;
As an aside, you can click here to view the Bureau’s guidelines on this area.
4. TRANSITIONAL ARRANGEMENTS: RECIPROCAL REGISTRATION
This section allows an organization that was previously registered with the Garda central Vetting Unit (GCVU), prior to 29th April 2016, to have that GCVU registration automatically transition over, so that that organization is deemed as being automatically registered with the new National Vetting Bureau.
5. RELEVANT ORGANISATIONS EXEMPTED FROM REGISTRATION
A relevant organisation shall not be required to comply with subsection (2) if applications for vetting disclosures are submitted to the Bureau on its behalf by another relevant organisation that is registered on the register of relevant organisations.
The old Garda Central Vetting Unit and now new National Vetting Bureau deals with organisations that submit applications above a certain threshold. For organisations beneath this threshold, they’re required to use another co-ordinating organization to submit their vetting applications to the Bureau. Probably the most well known such organization in Ireland would be the national volunteer development agency, Volunteer Ireland, which has a network of over twenty local volunteer centres nationwide.
6. ORGANISATION DETAILS REQUIRED FOR REGISTRATION
A relevant organisation that submits applications for vetting disclosures on behalf of another relevant organisation shall furnish the Bureau with particulars of the name and address of the relevant organisation concerned.
An application under this section shall—
These are the details requires by the Bureau in order for it to consider an organisation’s application to register with the Bureau.
7. THE BUREAU'S DISCRETIONARY POWER AS REGARDS REGISTRATION
An important point to remember is that the bureau may, in its discretion, refuse an organisation’s application to be registered; or alternatively, may removing an existing organisation’s registration currently sitting on the register.
To do so, however, the Bureau must be of the opinion that that organization is no longer, or wasn’t in the first place, a relevant organization entitled to be placed on the register.
8. PROCEDURAL REQUIREMENT FOR EXERCISE OF BUREAU’S DISCRETIONARY POWER
Under the principles of natural justice, if the Bureau decides to refuse a registration request, or decides to make an amendment to the register, then in those circumstances the Bureau is required ‘as soon as practicable’ to write to the affected organization informing it of the Bureau’s decision. Furthermore, the Bureau is required to give grounds for those changes in its written notification to the affected organization.
9. CRIMINAL OFFENCE CREATED FOR BREACH OF REGISTRATION REQUIREMENT
This is a new criminal offence.
Under s.27(1) of the legislation, the penalties range from:
Remember that in Ireland there are two ways that a criminal offence can be tried. A summary offence can be dealt with simply by a judge (there’s no jury present, so it’d be tried in the local District Court); compared to an indictable offence, which is more serious, and which is therefore tried in one of the higher courts (Circuit Criminal Court, Central Criminal Court) before a jury and a judge. There’s a pretty solid explanation of the difference between the offences here.
10. DEFENCE TO FAILURE TO REGISTER
We can see there’s a two-stage test here for an organization to successfully get the benefit of this defence:
- The first stage is that the organization factually did not know it was under the s.8(2) duty to apply to the Bureau to be registered on the register of relevant organisations
- The second stage is that ‘nor could [the organization] be reasonably expected to know’ that they were a relevant organization.
So it’s not a case of ‘either / or’ but rather ‘both / and’ in as much as both stages of the defence are required in order for the organization to be shielded from the potential prosecution.
11. WHAT DO WE NEED TO DO NOW? ORGANISATIONAL SELF-ASSESSMENT
Organisations that were already operating under the old regime with the Garda Central Vetting Unit should find their registration transitioned over to the new National Vetting Bureau. Organisations not yet registered with the Bureau will need to ask themselves the questions posed in this essay, to establish their eligibility for registration. For any organisation in doubt, and who have already taken advice on the point, it's well worth considering making an application to the National Vetting Bureau (not least due to the potential criminal liabilities flowing out of a failure to register), thereby allowing the Bureau to make the call on the organisation's eligibility for registration.
12. HOW TO APPLY TO REGISTER YOUR ORGANISATION WITH THE BUREAU
Click here to view the Bureau’s instructions on how to apply to register your organization with them.
In understanding if an organisation needs to register with the National Vetting Bureau, its important to have a clear understanding of the meaning of ‘relevant organisation’ as defined by the vetting legislation (the three potential legal identities; and the three possible functions carried out by a relevant organisation).
On the one hand, organisations that are already registered with the Garda Central Vetting Unit will benefit from the transitioning arrangements whereby their registration with the GCVU is deemed to be sufficient and implied registration with the new Bureau. On the other hand, some organisations don’t have to register directly with the Bureau when they can enjoy the benefit of an umbrella organization to submit their vetting applications on their behalf (so long as that organization is registered itself with the Bureau).
We explored the particulars required for an application to register as a relevant organization, and noted in passing the discretionary power that the Bureau holds to either refuse an application for registration; or to make amendments to an existing organization already on the register. We also looked at the procedural requirements on the Bureau as and when it decides to exercise that discretionary power. Finally, we looked at the new criminal offence created under s.8(2), and the two-stage potential defence to that offence.
There's clearly a fair amount of information to take into consideration when assessing if an organisation should be registering as a relevant organisation with the National Vetting Bureau. Understanding the legislative requirements will reduce the risk of making the wrong call in this are. Time spent doing so, will be time well spent.
This essay is for general information purposes only and does not constitute legal or other professional advice.
Specific legal advice from a firm of solicitors should always be sought on the application of the law in any particular situation.
Whilst all reasonable endeavours have been made to ensure the accuracy of the content, no liability whatsoever is accepted for any omissions or errors or for any action taken in reliance of the information in this essay.