We’re taking a look today at section 15 of the vetting legislation which deals with the procedures for vetting disclosures. In particular, section 15 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 - the new Irish vetting legislation, known until now as Garda vetting – looks at the assessment of specified information by the National Vetting Bureau.
We’re going to check out:
- an applicant’s right to be informed about the process of disclosing specified information
- the 14-day window for a person to submit any comments on the information to be disclosed (the right of reply)
- the obligation on the Chief Bureau Officer to assess all the information
- the obligation on the Chief Bureau Officer to come to a decision (‘determination’)
- the prohibition on the Chief Bureau Officer from making a determination unless certain factors have been met
- the ‘reasonable belief’ held in ‘good faith’ test
- the Necessary / Proportionate / Reasonable test (‘N.P.R.’)
- the 7 factors that make up an assessment of N.P.R.
- the discretionary powers of the Chief Bureau Officer
- the actual process for disclosing the specified information
- the importance of notifying the applicant of the determination (decision) to disclose and the intention to inform the relevant organisation
- the obligation on the Chief Bureau Officer to inform the applicant of their right to appeal
- the prohibition on disclosure during the 14-day period
- the discretionary power of the Appeals Officer to extend the appeal period
Without further ado, let's get stuck in to section 15.
SPECIFIED INFORMATION: A REMINDER
Specified information is information (generally allegations, or non-criminal ‘findings’) held by certain organisations about an applicant, where that information has generally not met the criminal standard of proof as to its veracity and reliability. The information must give rise to a belief that can be proven to be a reasonable belief, which is held in ‘good faith’, and where the belief is that the person may cause, allow, incite or otherwise harm to a child or vulnerable person.
Let’s first have a quick refresher on the notion of ‘Specified Information’. For a deep-dive look, have a read of What is Specified Information and Where does it Come From?
THE STATUTORY SAFEGUARD TO ONE’S GOOD NAME
Section 15 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 is the critically important statutory safeguard put in place to ensure that people who are being put under the microscope of the National Vetting Bureau, specifically in relation to the potential disclosure of specified information about them, which they applicants haven’t seen, are given all proper protections to ensure that no mistakes are made and reputations unfairly sullied due to incorrect information being improperly disclosed.
SECTION 15: BUREAU PROCESSING OF AN APPLICATION FOR VETTING DISCLOSURE
Assessment of specified information.
THE APPLICANT’S RIGHT TO INFORMATION
The Chief Bureau Officer is the person responsible for ensuring that someone has referred to be in relation to the requirement to make an assessment or determination of specified information that has come to light in the course of the process of the vetting disclosure.
The applicant must be given a written summary of the specified information, and informed that they can make a written submission to the National Vetting Bureau on the matters revealed.
15.—(1) Where a matter is referred under section 14(3) to the Chief Bureau Officer for assessment and determination, he or she shall—
(a) notify in writing, or cause to be so notified, the person who is the subject of the application for vetting disclosure concerned of that fact,
(b) furnish that person with a summary in writing of the specified information relating to him or her, and
(c) inform that person that he or she may make a written sub- mission in relation to the specified information concerned.
14-DAY RIGHT FOR REPLY SUBMISSION
The legislation provides for a narrow 14-day window in which the person against who an assessment of specified information is being made, has in which to respond in writing to the National Vetting Bureau.
The legislation at the same time grants a discretionary power to the Chief Bureau Officer to allow that Officer to extent the 14-day written submission window for a ‘longer period’.
But this discretionary period only be granted for both ‘good’ and ‘sufficient’ reason (itself a two-fold test).
- A ‘good’ reason to extend the window of time isn’t enough.
- A ‘sufficient’ reason on its own is not enough.
- The reason must be both ‘good’ and ‘sufficient’ at the same time.
Quite what this will look like in practice remains to be seen, and is quite likely to be examined at some juncture by a senior judicial officer reviewing this turn of phrase.
THE CHIEF BUREAU OFFICER’S ASSESSMENT
Terminology is important. The Chief Bureau Officer is required by the legislation to (a) assess the information and, on the back of that information, use their judgement to come to their own (b) determination of what should be done with the information assessed.
A DETERMINATION –V- AN ASSESSMENT
An assessment of the information is a review of the information to hand disclosed as part of both the application for vetting disclosure, and information that has come to light by way of specified information.
An assessment, however, is not a decision or ‘determination’ of what should be done with the information that’s been collectively assessed.
Under this sub-section, the Chief Bureau Officer, is required (“shall”) to assess both:
The application for vetting disclosure, and
The specified information
The decision as to what to do with the information assessed, is known as the ‘determination’.
PROHIBITION ON A DETERMINATION
Note however that the Chief Bureau Officer is prohibited (“shall not make a determination… unless…”) from making a ‘determination’ unless the Chief Bureau Officer can meet a two-step test that the information that they’ve collectively assessed produces a:
- Reasonable belief leading to a bona fide concern of potential risk, incitement to, or actual harm to a child or vulnerable person
AND
That disclosure of that information is
- Necesssary
- Proportionate
- Reasonable
These terms ('necessary', 'proportionate', 'reasonable') are all legal terms of art, and place a high threshold for the Chief Bureau Officer to have to cross to be in a position to get over the statutory prohibition placed on the Chief Bureau Officer that prevents them making a determination unless and until this two-step test has been satisfied.
THE 2-STEP TEST TO ALLOW DISCLOSURE OF SPECIFIED INFORMATION
STEP 1: THE ‘REASONABLE BELIEF’ TEST
STEP 2: THE ‘N.P.R.’ TEST
In coming to a decision to disclose or not disclose the specified information, and whether that disclosure is:
- Necessary
- Proportionate
- Reasonable
DECIDING IF IT’S ‘N.P.R.’ – 7 FACTORS TO CONSIDER
…the Chief Bureau Officer is obliged to take into consideration 7 further matters as set out in sub-section (4):
N.P.R. FACTOR NO. 1: THE INFORMATION CONCERNED
This would seem to be a statement of obvious, and the point is: it is.
But it’s there to put a statutory line in the sand that the determination can only focus on the actual information that has come to light during the process of the application for vetting disclosure, and cannot be made on information that has not come to light during that formal process (but which was nonetheless somehow be in the position or knowledge of the relevant authorities).
N.P.R. FACTOR NO. 2: RELEVANCY OF INFORMATION TO WORK PROPOSED
This goes to the heart of the overall information disclosed.
Relevance is a key point. If the information to be disclosed would not have a bearing on the type of work being proposed to be carried out, then it’s less likely to pass the relevance test to allow the information to be disclosed.
N.P.R. FACTOR NO. 3: EXTENT OF & TYPE OF CONTACT WITH VULNERABLE GROUPS
This is an important qualifier, specifically asking if the proposed work would involve contact time with children or vulnerable persons, and the nature of that contact. A detailed consideration of the type and nature of proposed work would therefore need to be carried out by the Chief Bureau Officer.
N.P.R. FACTOR NO. 4: RELIABLITY & PROVENANCE OF THE INFORMATION
The importance in considering the source and reliability of the information cannot be over-emphasised. It’s a potentially fraught area, especially where information is disclosed that has not gone through a judicial type process held to the criminal standard of proof.
N.P.R. FACTOR NO. 5: EXTERNAL SUBMISSIONS
This sub-section refers to ss.19(1) and (2) which compels regulatory bodies (however they’re described) to notify the National Vetting Bureau if the regulatory type body has come to a reasonable belief (as a result of their own investigation / regulatory process) leading to them having a bona fide concern of potential risk, incitement to, or actual harm to a child or vulnerable person. S.19(2) covers the role of the HSE (Health Service Executive) being compelled to make a disclosure to the National Vetting Bureau in similar circumstances.
N.P.R. FACTOR NO. 6: CONSTITUTIONAL PROTECTION
This sub-section deals with a broad interpretation of the Irish constitutional requirement to protection someone’s good name (“fairness and natural justice”).
N.P.R. FACTOR NO. 7: THE ‘UMBRELLA’ PROVISION
This is an umbrella sub-section that ‘covers’ (hence, ‘umbrella’) any other matter not previously listed above, and which the Chief Bureau Officer decides, in their judgement, is of relevance in consideration of the application for vetting disclosure.
DISCRETIONARY POWER TO REQUEST FURTHER INFORMATION
The Chief Bureau Officer is also empowered to make a ‘Request for Further Information’ from either the ‘scheduled organisation’ or indeed the member of the Garda Siochana; and that organization / Garda must comply with the request for further information in the time period reasonably set out by the Chief Bureau Officer.
PROCESS OF ACTUAL DISCLOSURE OF SPECIFIED INFORMATION
The Chief Bureau Officer is required to follow a number of steps in determining (meaning, ‘deciding’) if specified information should be disclosed.
NOTIFICATION OF DETERMINATION & REASONS WHY
The Chief Bureau Officer must tell the applicant of the determination (decision) to disclose the specified information and the reasons why that information is going to be disclosed.
PROVISION OF COPY INFORMATION TO APPLICANT
The Chief Bureau Officer must provide a copy of the ‘specified information’ to the applicant, that the Chief Bureau Officer will be providing to the organization to whom the application for vetting disclosure was made.
INFORM OF INTENTION TO DISCLOSE SPECIFIED INFORMATION
The Chief Bureau Officer must inform the applicant that they the Chief Bureau Officer intends to make a disclosure of specified information to the relevant organization, in 14 days’ time.
OBLIGATION TO INFORM APPLICANT OF RIGHT TO APPEAL
The Chief Bureau Officer must inform the applicant that they have a right to appeal the decision to disclose the specified information, but that the appeal must be made within the 14-day period of time. The appeal will be decided by an independent ‘appeals officer’.
PROHIBITION ON DISCLOSURE UNTIL 14-DAY PERIOD HAS ELAPSED
The Chief Bureau Officer is prohibited (“shall not”) make its vetting disclosure until the 14-day period has passed in which an appeal can be lodged, or, if the appeal is lodged within that period, the actual appeal has been decided one way or the other.
APPEALS OFFICER’S DISCRETIONARY POWER TO EXTEND APPEAL PERIOD
This is an interesting provision:
It allows:
- someone to actually fail to lodge an appeal within the 14-day period of time;
- the Chief Bureau Officer to go and issue its vetting disclosure that includes the ‘specified information’
- the applicant to still go and lodge an appeal, after the 14-day standard appeal period has elapsed
- but only if the ‘appeals officer’ allows it
SUMMARY
Specified information is information (generally allegations, or non-criminal ‘findings’) held by certain organisations about an applicant, where that information has generally not met the criminal standard of proof as to its veracity and reliability. The information must give rise to a belief that can be proven to be a reasonable belief, which is held in ‘good faith’, and where the belief is that the person may cause, allow, incite or otherwise harm to a child or vulnerable person.
Section 15 of the National Vetting Bureau (Childen and Vulnerable Persons) Acts 2012 to 2016 is the critically important statutory safeguard put in place to ensure that people who are being put under the microscope of the National Vetting Bureau, specifically in relation to the potential disclosure of specified information about them, which they applicants haven’t seen, are given all proper protections to ensure that no mistakes are made and reputations unfairly sullied due to incorrect information being improperly disclosed.
It’s important for any organisation who deals with criminal record checks in Ireland, to have a basic understanding of how the National Vetting Bureau comes to its decisions; to reassure applicants of the statutory protections in place to ensure that mistakes aren’t made, that their good names are protected; and also to ensure the safety and welfare of children and vulnerable persons is kept at the heart of the vetting process.
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 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.
- Bullet Point 1
- Bullet Point 2
