Limiting the requirement to self-disclose certain prior criminal convictions

We’re taking another look today at Part 3 of the vetting legislation which deals with the procedures for vetting disclosures.

In particular, we will look today at section 13 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 - the new Irish vetting legislation, known until now as Garda vetting, and especially the applications for vetting disclosures and who may apply.

WHAT’S SECTION 13 ALL ABOUT THEN?

Points covered out by Section 13 include:

APPLICATIONS FOR VETTING DISCLOSURE AND WHO MAY APPLY

13.—(1) An application for vetting disclosure in respect of a person shall be made by a liaison person for a relevant organisation.

Ok – so first things first. Sounds basic, but this is where the law establishes that it’s the liaison person for a relevant organization who makes an application for vetting disclosure. That’s why everything flows through the liaison person. Remember that the liaison person here is the top person in the organization, responsible for the vetting of applicants.

VETTING BY ONE ORGANISATION, ON ANOTHER’S BEHALF

The first point to make here is that you can see that section 2 creates the ability for one organisation (let’s call it Organisation A) to provide a service on behalf of another organisation (let’s call it Organisation B). With that service, Organisation A can submit applications for vetting disclosures either for itself, Organisation A; or on behalf of the second organisation, Organisation B.

This is particularly relevant / important for those smaller organisations whose usual volume of applications for vetting disclosure wouldn’t be sufficiently large (on an annual basis) to enable it to self-register with the National Vetting Bureau.

Section 12(2) was amended by Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016. (In the section above, the text in red, and crossed out, is the original text before the amendment).

The primary purpose of the amendment appears to be to statutorily require that Organisation A provides a copy of the vetting disclosure that it receives from the National Vetting Bureau, to Organisation B, who Organisation A has been representing in the processing of Organisation B’s applications to the Bureau for vetting disclosures.

This would be to guard against a failure by Organisation A to provide to Organisation B, the relevant vetting disclosures sent to Organisation A by the Bureau (in the case, Organisation B would be unable to advance matters in the absence of Organisation A passing to Organisation B the vetting disclosures which it’s entitled to receive).

WHO VETS THE SELF-EMPLOYED?

Self-employed persons, who are due to carry out relevant work or activities, are required to be vetted by either (1) the organization contracting with them; (2) their regulatory or licensing body; or (3) by the organisation that carries out vetting on their behalf.

This makes it the responsibility of any person (body corporate or unincorporated) that’s established by virtue of a law (other than company law) whose functions include regulation, registration, licensing or other authorisations of people who undertake relevant work or activities.

See Number 26 of our 34 Terms You Should Know essay. So basically, a licensing body / organisation who places that person in an area of relevant work / activity.

Paragraph (d) refers to an organisation that represents (for vetting purposes) any other person / trade / profession or body / organisation that undertakes the relevant work / activity.

THE IMPORTANCE OF CONSENT – AND DECLARING THAT CONSENT

An example of this Declaration of Consent by the applicant can be seen below. It’s only a matter of ticking the box (on the paper form), but it’s nonetheless a declaration that the applicant does indeed consent to the process of:

So you can see it’s a two-fold declaration of consent.

FUTURE COSTS OF VETTING

At the time of writing, there’s no fee for submitting applications for vetting disclosure. But, looking at overseas jurisdictions and the development of vetting processes and procedures, it’s reasonable to assume that in the future there will be some form of fee payable for vetting disclosures. Whether that’s a fee payable by the relevant organisation, or by the applicant; or is dependent on the nature of the work being carried out (paid employment - v - voluntary work, is something that will become apparent in time).

THE CRITICAL LIMIT ON SELF-DISCLOSURE

This is a critical new sub-section that was introduced into the 2012 legislation by the amending legislation called the Criminal Justice (Spent Convictions and Certain Disclosures) 2016.

The amending phrase is “subject to subection (6A)”.

So what is the new subsection 6A that it was so important to introduce?

Let’s take a look below.

Well, firstly in subsection (m), the Bureau’s given the right to request ‘such other information as the Bureau may reasonably require’ to get its job done properly.

PARENTAL / GUARDIAN CONSENT REQUIRED FOR U18S

And here’s the section introduced by the amending legislation:

Section 6(A) specifically excludes from the requirement to self-disclose, on the application for vetting disclosure, details of any criminal convictions that are covered by the new section 14A of the legislation.

(It’s enough to know, in this essay at least, that section 14A (referred to in the new s.13(6A) lists out the various circumstances of convictions which fall outside of the self-disclosure requirement.

When we look at section 14A in detail in another essay, we’ll also explore the extent to which organisations proactively take steps to fairly and clearly inform applicants of this part of the vetting legislation, which excludes the self-disclosure requirement in respect of certain prior criminal convictions.

WHO’S ‘SELF-EMPLOYED’, FOR VETTING PURPOSES?

It’s curious that this definition of “self-employed person” comes right at the end of this section. You’d have thought that it’d be more helpful to have had it at the start, so anyone trying to read the legislation would have a clear idea in their head of what exactly a self-employed person is, for the purposes of this section.

Either way, we can see that it’s a 4-fold definition, and is for a person who:

SUMMARY

The original 2012 vetting legislation had a number of constitutional and other problems connected to it that necessitated supplementary legislation be written to rectify those problems (primarily related to the rehabilitation of offenders and the proportionality on information disclosed as part of the vetting process).

Part 3 of the original vetting legislation was therefore significantly amended by another law called the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.

Section 19 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 specifically changes / amends section 13 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012.

Section 13 – which sets out the information to appear in the application for vetting disclosure – has a crucial amendment to it, introduced by s.19 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.

The new subsection 6A of section 13, specifically statutorily permits the non-disclosure of certain prior criminal convictions (as set out in the new section 14A of the 2012 vetting legislation).

Much credit for this lies with the Irish Penal Reform Trust and its efforts in relation to the rehabilitation of offenders, and to ensure that prior criminal convictions do not disproportionately or unreasonably / unfairly prevent people from getting involved in certain work or activities, after the passage of a set period of time (as set out in the legislation).

At the heart of the recruitment process lies the issue of trust, establishing trust, building trust, earning trust, and not losing trust.

A good yardstick by which any organization can measure itself, is the extent to which it proactively draws attention to the section 13 issues raised, especially the statutory limits on the obligation of self-disclosures of prior criminal convictions after a set period of time.

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