In last week’s essay we traced the winding path taken by the legislation from its genesis in a 2008 Joint Committee constitutional report on children, through to the heads of the bill in 2011, the bill becoming an Act in 2012, the stumbling blocks that the law encountered in 2013 & 2014, up to the day that it was commenced as law in Ireland on Friday 29th April 2016. In this essay on Garda Vetting we are going to get our hard hats on and start digging into 34 words, terms and phrases that the people who wrote this important legislation, think you should have a decent grip on.
“Does this really matter?”, you ask? "Do I really need to know what this stuff means?"
If you are happy to “wing it”, then by all means read on no further.
(In fact, many organisations, have made an art form of “winging it” in this area. This is not something I recommend; I’m simply making a statement of the obvious).
However, if you are someone who has been entrusted by your organisation with the responsibility as regards the safe recruitment of volunteers, then I reckon reading this essay will be a good use of your time.
(Let me know afterwards if you disagree!).
So, without further ado, let’s dig into these terms and terminology.
To understand what an appellant is we need to take a closer look at the section 18 of the Act. That section provides that the following:
As the subsection shows, a person going through the new vetting procedure changes from being classified as an 'applicant' and becomes an the 'appellant' when they feel aggrieved by the decision (or determination) of the Chief Bureau Officer (and take certain actions relating to that grievance).
For a person to be ‘aggrieved’ can mean a number of different things. Generally speaking, it’s when a person feels resentment at feeling that they have been unfairly treated, in their eyes, leading to a sense of anger, distress, anguish and hurt.
So why should anyone feel a sense of grievance in the vetting process?
Well under section 14(3), where a Bureau staff member considers that there is "specified information” relating to somebody going through that process, that member of staff is obliged (“shall refer the matter” i.e. does not have a choice) to notify the Chief Bureau Officer of their opinion.
Once the Chief Bureau Officer receives a referral from a member of their staff, they are obliged under section 15 to write to the applicant and let them know that a staff member has made a referral in respect of certain specified information pertaining to the applicant.
That written notification must also include a summary of the specified information, and must inform the applicant that they are entitled to make a written submission commenting on the information contained in the written notification.
Of interest here will be the fact that s.15(1)(b) compels the Chief Bureau Officer to provide a “summary in writing of the specified information”.
In the interests of natural justice and fairness, applicants who receive a s.15 Notification Letter (my term) may well want to see what this so-called “specified information” on which the Chief Bureau Officer intends to make an assessment leading to a determination.
The process for an applicant to view this information is set out in section 15; and is one on which we will focus our attention on in a later essay.
For the time being, a person who is making a vetting application and who receives a s.15 Notification Letter, can then make a formal written submission under s.15(2), commenting on the summary of the specified information received in the s.15 Notification Letter.
They must do so not later than 14 days (or as otherwise allowed) from the date of the s.15 Notification Letter.
2. APPEALS OFFICER
Flowing out of this new appeals process, the Minister for Justice is able to appoint independent practicing barristers or lawyers (of not less than seven years experience, i.e. of relative seniority / experience), as an appeals officer.
They will hold that post for a three year fixed term and are obliged to be independent of the National Vetting Bureau.
(As such, a parallel can be drawn with the appointment of independent members to the Criminal Injuries Compensation Tribunal that administers the Scheme of Compensation for Personal Injuries Criminally Inflicted, and the Scheme of Compensation for Personal Injuries Criminally Inflicted on Prison Officer (both of which are non-statutory schemes)).
3. APPLICATION FOR RETROSPECTIVE VETTING DISCLOSURE
This is the term used to describe the process by which an organisation requests someone who has been involved in the provision of relevant services to children or vulnerable adults prior to the commencement of the Act on 29th April 2016, to submit an application for vetting disclosure post-commencement of the Act.
Essentially it recognises that some people will have been providing relevant services to children or vulnerable adults, wouldn’t have been vetted prior to the commencement of the legislation, but now makes it a statutory requirement that they are vetted.
The period of time in which these retrospective vetting disclosure applications can be made is something at the discretion of the Minister for Justice to set out the relevant time periods.
Again this is what is known as a strict liability offence: if this law is breached, an offence is committed and there is no defence.
4. APPLICATION FOR RE-VETTING DISCLOSURE
This is the term used to describe the process whereby someone who has already successfully gone through the vetting process, is required after the expiry of a set period of time, to make a fresh vetting application. The period of time after which someone would be required to make a fresh vetting application will be set out by the Minister for Justice. Different re-vetting periods may potentially apply to different types of organisations.
Interestingly, the original 2012 Act created a new statutory criminal offence for An organization to fail to re-vet someone in certain circumstances, but at the same time the 2012 Act provided a defence of an organisation having ‘a reasonable excuse’ for the failure to re-vet.
S.23(b) of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 specifically removed this defence. As such it becomes a strict liability offence: a person who contravenes the re-vetting requirement set out in s.20(1) of the Act is guilty of an offence (there is no defence).
5. APPROPRIATE PERSON
This is the term used to describe the person appointed by one of the 11 professional or regulatory bodies in Ireland, whose job it is to notify the National Vetting Bureau of any specified information that comes to the regulatory or disciplinary body’s attention during the course of any investigation, inquiry or regulatory process being conducted by that body.
It’s important to note that this s.19 duty applies not only for new regulatory, disciplinary or enquiry processes commenced after 29th April 2016, but also for any such process that was started at any time prior to 29th April 2016, but which had not yet concluded by that date.
While this should be self-explanatory, this is the re-labelling of what till 29th April 2016 was known as the Garda Central Vetting Unit (GCVU).
7. CHIEF BUREAU OFFICER
This is the name of the new position held by the senior ranking officer/person in charge of the new National Vetting Bureau.
The definition of the child is important in the context of parental consent required for any person under the age of 18 years old, who want to help in the provision of relevant services to children or vulnerable adults.
9. COMPLIANCE OFFICER
The compliance officer is a new position with far-reaching statutory powers that are set out in section 24. The position is held by the furnishing, to the person to be appointed as a compliance officer, of a warrant of appointment that effectively gives the compliance officer the powers set out in s.24. Compliance officers can require that they are accompanied by members of An Garda Siochana. Anyone who obstructs or interferes with a compliance officer (or member of An Garda Siochana) discharging their powers under s.24, will be guilty of an offence.
10. CONTRACT OF EMPLOYMENT
This is self-explanatory as well as being all-encompassing. Remember, at law, calling a spade a spade, doesn't make it a spade. Just because an organisation says 'we don't have a contract with this person', doesn't make it so. The law will always look behind the facade and ask what the nub of the relationship between the parties is based on: permission, tort or... contract.
11. CRIMINAL OFFENCE
This term actually requires a little unpacking. As I understand it, this relates to the recripricocity of offences i.e. if an offence is committed in a country other than Ireland, and had the act or omission, which lead to the offence, been done in Ireland; if that act or omission would have similarly lead to an offence having been committed in Ireland, then another country's 'offence' will be recognised as one with equivalent effect here in Ireland.
Or, put more simply: if it's a crime in another country, but the act or omission if it had occurred here in Ireland wouldn't have been classified as an offence, then arguably it's not counted as a criminal offence here in Ireland. (If you think about it, this makes sense. Some countries still choose to outlaw e.g. homosexuality (it was only decriminalised in Ireland in 1993, if you can imagine that). A conviction for this in another country would not, as I understand it, be recognised in Ireland as a criminal offence on our turf in general (and more specifically, in the remit of the vetting legislation).
12. CRIMINAL RECORD
Some thought will need to go into the term 'any ancillary or consequential orders' particularly arising out of, for example, family law disputes where barring orders are made in relative haste, with the parties involved sometimes finding themselves repenting at leisure at the (unintended) consequences of bringing criminal barring actions against a separating partner.
This is the creation of a database system know as the National Vetting Bureau (Children and Vulnerable Persons) Database System. It includes a register of organisations required to be registered with the Bureau; a register of specified information; and a register of people who have gone through the vetting process.
This is self-explanatory. Just a fancy word for a law.
15. GARDA CENTRAL VETTING UNIT
This is included to clarify the label/name of the body from whom power has passed to the new National Vetting Bureau.
16. GARDA COMMISSIONER
This is the most senior officer of the national police force in Ireland.
Importantly defining what is meant by harm, this is an international best practice definition of the scope of harm envisaged to be caught by the legislation.
18. LIAISON PERSON
This is the point person in a relevant organization who liaises between the National Vetting Bureau and persons looking to get vetting application disclosures from the Bureau. This is always a senior person in the relevant organization and there are a number of procedural steps required for the Bureau to approve the appointment of a person as the liaison person in a relevant organisation.
This is the senior politician responsible for the operation of the National Vetting Bureau.
Self-explanatory, and of particular relevance in the context of e-vetting (of which more in another essay).
This is just another fancy legal word for when the senior politician (the Minister for Justice) sets out certain dates or matters, and his stating them makes them to be authoritative.
22. PRIVATE ARRANGEMENT
An important carve-out for people that the legislation is not intended to cover. We'll cover this more in another essay.
23. REGISTER OF RELEVANT ORGANISATIONS
This is a requirement for all organisations who provide relevant services, to ensure that they are one way or the other, listed on the register of relevant organisations held by the National Vetting Bureau. There are a number of limited exceptions and it is possible to comply with this requirement if an umbrella body processes vetting applications on behalf of an organisation that would otherwise be required to register directly with the National Vetting Bureau.
24. REGISTER OF SPECIFIED INFORMATION
This is the collection of specified information that includes information held by the then Garda Central Vetting Unit prior to the commencement of the Act.
25. REGISTER OF VETTED PERSONS
“register of vetted persons” means the register established and maintained under section 11;
This is again reasonably self-explanatory, but is basically the register held by the National Vetting Bureau of the details of people who’ve gone through or are going through the vetting process.
26. RELEVANT ORGANISATION
This section is worthy of an essay in itself, but basically you see that it’s the all-encompassing section that captures what organisations are covered by the remit of the legislation. Watch out for more detail here in an upcoming essay.
27. RELEVANT WORK OR ACTIVITIES
This is the 'umbrella' provision which covers all relevant work which the Act is intended to cover, but which is then split out into the two main branches, namely work or activities relating to children, and relating to vulnerable persons.
28. RELEVANT WORK OR ACTIVITIES RELATING TO CHILDREN
Part 1 of Schedule 1 of the Act lists out 15 separate categories of work or activities relating to children, which fall within the remit of the legislation and includes everything from education and healthcare providers, religious service providers, statutory duty holders, medical professionals working with children, amongst others.
29. RELEVANT WORK OR ACTIVITIES RELATING TO VULNERABLE PERSONS
Part 2 of Schedule 1 lists out 12 separate categories of work or activities relating to vulnerable persons, and broadly (with exceptions) follows the categorised list of relevant work or activities relating to children set out in Part 1 Schedule 1.
30. SCHEDULED ORGANISATION
This is a list of what I call the regulatory and professional disciplinary bodies that are obliged to report specified information to the National Vetting Burea in the event that specified information comes to light during the course of their disciplinary processes (howsoever described). Think: HSE, Teaching Council, Dental Council etc. Note however that this has been amended by the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016. More on this in another essay.
31. SPECIFIED INFORMATION
Specified information is the fundamental lever of change for the assessment of someone’s suitability to work with children or vulnerable persons. It’s the first time that it’s been put on a statutory basis in Ireland, and the reason for it being put on that footing is due the fact that it does encroach on an individual’s rights to a good name (amongst other things), and the right to a presumption of innocence. The legislation recognises this (hence the creation of the appeals process under s.17 and s.18. Much more on this is a follow up essay to come.
32. VETTING DISCLOSURE
This describes the outcome of the process by which an individual submits an application to the National Vetting Bureau.
33. VETTING PROCEDURES
Pretty much self-explanatory.
34. VULNERABLE PERSON
An important codification of the definition of what a vulnerable person is, in the narrow eyes of the law. This definition deserves a much fuller consideration in another essay.
Hopefully the 34 terms we’ve looked at here give you a better feeling for how the legislation is framed, how its various parts work with one another, and what parts that may be of especial relevance to you in your own area of work.
Join me in our next essay, as we dive in to the main part of the legislation. In particular we will look together at those people to whom the Act does not apply, as well as exploring the way in which flesh can be put on the bones of the legislation, through the Ministerial process of issuing regulations pursuant to the Act.