Section 20 of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 - the new Irish vetting legislation, known until now as Garda vetting – deals with the re-vetting of people after a certain amount of time has passed.

Importantly, section 20 of the vetting legislation was specifically put on hold (i.e. not ‘commenced’) and is therefore currently not fully law (yet).

In this essay we explore the purpose of s.20, what'll happen if you don't comply with the s.20 obligations, the defence to non-compliance, and why it’s been delayed from going live, and how it may impact your own organisation.

Under Statutory Instrument 214 of 2016, the Irish vetting legislation finally had life breathed into by the Oireachtas, with the Commencement Order that officially commenced the vetting legislation.

(Remember, a Bill only becomes an Act when it’s approved by the relevant parliamentary procedures. But an Act only comes to life when it’s ‘commenced’ i.e. when the Oireachtas specifically says that an Act is now in force).

A rather scattergun approach to the commencement of important legislation can be seen when important Acts are passed by the Oireachtas, but their implementation is put on hold or, alternatively, only certain sections of the legislation are ‘commenced’.

This can create confusion which, to be honest, is the exact opposite intention of the original legislators, but reflects the nature of the ‘cart being put before the horse’ in many instances.

So, in this case, section 20 has been specifically ‘put on ice’ so that it does not yet operate as fully fledged law. Let's see what the statutory instrument that commenced the vetting legislation actually says:

SECTION 20: THE RE-VETTING REQUIREMENT

The obligation is mandatory ("shall") and it's an obligation triggered after the expiry after a certain amount of time, creating a new obligation to vet a person a second time (i.e. to re-vet).

DIFFERENT RE-VETTING PERIODS FOR DIFFERENT TYPES OF ORGANISATIONS / WORK UNDERTAKEN

Section 20 is actually quite simple in its structure, in that it defers to what will be future Ministerial regulations that will set out the exact time periods after which different organisations carrying out differing types of works/activities, will be required to re-vet.

CREATION OF A NEW STATUTORY CRIMINAL OFFENCE

But, to be clear: a new criminal offence is created under s.20. Fail to re-vet? Prepare to commit an offence. However, as we'll see further below, that's not actually the end of the story.

CRIMINAL LAW SANCTION FOR FAILURE TO RE-VET

SECTION 12 TO NOT APPLY

Section 12 of the vetting legislation is irrelevant for section 20, as section 12 deals with the initial vetting application.

VARIATION OF SECTION 20

However, that’s not the full story.

With the passing of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, one impact of that piece of legislation was to amend section 20 of the vetting legislation – the section we’re exploring today.

Let’s check it out, and specifically s.23 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016, that amends section 20 of the vetting legislation:

So what does that mean in plain English?

Well, the effect is to vary section 20 as it was originally written:

VETTING INFORMATION TOO

Before the amendment was added, it was only after a vetting disclosure had been received, that the legislation anticipated that re-vetting would be required.

With the addition of the phrase:

it’s now not simply vetting disclosures that can trigger it, but also ‘vetting information’ – basically specified information or so-called ‘soft’ information.

CREATION OF NEW DEFENCE FOR FAILING TO RE-VET

Section 12 of the CJA2016 required the deletion of the word ‘contravenes’ and its replacement with the phase ‘without reasonable excuse fails to comply’.

EFFECT OF THE CHANGE: WATERING DOWN, OR COMMON SENSE?

Well, as we saw above, s.20(3) of the vetting legislation appeared to have created what’s known as a ‘strict liability offence’.

Strict liability offences are offences where the legislators basically are saying that they’re not interested in what your reason for contravening / breaking a law is (what your state of mind was); the simple act of breaching the law means you’ve committed the offence.

Strict liability offences can be perceived to be ‘stricter’ in that it’s harder to wriggle out of it if you’ve committed the offence (the reason for the breach being deemed irrelevant).

The effect of section 23 of the CJA2016 is to essentially – depending on where you’re standing – water down the strictness of the offence; or, alternately, allow for the reality of the difficulties of tracking which of your volunteers are vetted, and allow for reasonable excuses to, well, excuse, non-compliance with the re-vetting obligation.

SUMMARY

Section 20 of the vetting legislation is the hook on which hangs the statutory requirement to re-vet a volunteer. To ‘re-vet’ is simply jargon to mean you need to put someone through your criminal background checking process again, so that you get an up to date disclosure.

The purpose of re-vetting is, while not strictly set out here, to reflect the reality that it’s both prudent and reasonable to, from time to time, to get up to date snapshots of the criminal background of volunteers working with children or vulnerable adults in certain types of work or activities.

This itself is a reflection of the fact that a significant amount of time can pass between Point A (the point where you approve the recruitment of a person into your organisation) and Point B (which could be somewhere from 3 to 5 years after Point A).

During that time period – the period elapsed between Point A and Point B, ‘risk’ is created from the organisation’s point of view in as much as the organisation is ‘blind’ to changes in the criminal background of its many volunteers.

While some organisations do require volunteers to essentially ‘self-declare’ any change in their criminal background history, in reality this doesn’t take place with anything like the frequency that it should.

Quite what the exact re-vetting periods of time will be remains, at the time of writing, to be seen. But it’s likely to be annual or every second year for organisations with very high contact with vulnerable groups (and with e.g. daily frequency of contact), extending out to 3 to 5 years depending on the categories of work being undertaken etc.