Section 17 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 appointment of persons (experienced lawyers) who are given the power to review decisions taken under the vetting legislation.
Unlike many other sections of the National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016, this section is basically left untouched by the amending legislation called the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.
In this essay we look at the eligibility criteria for someone being appointed as an appeals officer, as well as how long the term is, and how their term can come to an end. We investigate how it’s now a statutory requirement for an appeals officer to carry out their job independently. Finally, in our summary, we reflect on the important role played by appeals officer in embedding public confidence in the procedural decision making processes of the National Vetting Bureau and, by extension, the integrity of the outcomes of that decision making process.
PANEL OF APPEALS OFFICERS
It was the Roman poet Juvenal who first wrote the phrase "Quis custodiet ipsos custodes?" - or, 'Who guards the guardians?'. Under the vetting legislation, the answer to Juvenal would be, in the first instance, 'the Appeals Officers'.
Under s.17 the Minister of Justice is entitled to appoint people to becomes appeals officers in respect of decisions made under the vetting legislation.
To be eligible to act as an appeals officer, a person must be:
- A lawyer (either a solicitor, or a barrister),
- With a minimum of 7-years post-qualification experience, and
- Be currently practising (i.e. as a licensed lawyer holding a certificate entitling them to practice the profession of a law for the year in question).
These are important points. The nuts and bolts are such that an appeals officer has to have a considerable degree of professional experience as a lawyer behind them, and actually be working as a lawyer at the time of (and presumably during) their tenure of appointment.
Why is this important?
Well there are people who study law as a degree but don’t pass the rigorous professional exams entitling them to hold themselves out to the public as a qualified lawyer.
But being a qualified lawyer isn’t enough.
The appeals officer has to have a certificate from the regulatory body, entitling them to practice law for that year.
THE INDEPENDENCE OF THE OFFICE HOLDER’S POSITION
Under s.17(3), any person who is an appeals officer under the vetting legislation, is to hold the ‘office’ (i.e. position) of appeals officer for a 3-year term.
They’re also allowed to be eligible to serve an additional term(s).
But they’re also bound, most importantly, to be independent in how they carry out their role. This is the most important part of s.17.
It creates a statutory safeguard for an independent reviewer of decisions taken by the Chief Bureau Officer.
Independence should be something that is second nature to persons eligible to act as appeals officers, and the whole point is that lawyers are experts in objectively looking at procedural requirements, facts on the ground, and clearly and cogently coming down on one side or the other as to whether a decision was taken fairly (or not).
Finally, they’re entitled to the remuneration (pay) and expenses as the relevant Minister sets out.
HOW AN APPEALS OFFICER’S TERM CAN END
An appeals officer can decide to resign from the postion if they choose. Alternatively, they can be fired (euphemism: ‘removed from office’) if they have become unable to do the job properly (‘incapable… of effectively performing his or her functions…’) either due to:
- Ill health, or
- Due to 'stated misbehaviour'
Quite what ‘stated misbehaviour’ means isn’t spelled out in black and white.
But it’s reasonable to assume that it’ll be along the lines of the type of behaviour regulated under the professional codes of conduct for either branch of the legal profession (i.e. the solicitors’ or barristers’ professional code of conduct / ethics). In addition, if an appeals officer misuses information that comes into their possession while they’re carrying out their duties as an appeals officer, then that’s likely to constitute stated misbehavour too. In the fullness of time, the Minister will likely issue detailed guidance on the point.
Section 17 of the vetting legislation is a short, but important, section.
It deals with the appointment of experienced, qualified, practicing lawyers to the position of appeals officer under the vetting legislation.
S.17 sets out the terms of the person’s appointment, how they can be re-appointed, and how the person can either voluntarily step back from the position, or be effectively removed from the office by the Minister.
Probably most importantly, s.17(3)(b) of the vetting legislation makes it a statutory requirement that, subject to the overall vetting legislation, any person acting as an appeals officer must do their job independently.
The role of the appeals officer looks innocuous enough at first glance. However, it will form part of the confidence-building measures that will allow the general public to believe in the integrity of the assessment, review and decision making processes under the vetting legislation.
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.