August 17, 2011 by David Miller
So, one of the last bills (or, more accurately, draft heads of the bill) to be published by the Coalition Government prior to the summer recess, was that of the long awaited National Vetting Bureau Bill 2011, under the auspices of the Minister for Justice, Equality & Defence. It runs to 42 pages comprised of 23 sections broken down into 5 parts.
The following account is a grassroots volunteer’s view of the potential impact of the proposed legislation. The author is a Children’s Officer for a large grassroots soccer club, a dispute resolution solicitor by experience, a member of the FAI’s National Disciplinary Panel and the managing director of a web-based start-up company engineering a risk management software solution for voluntary clubs and organisations, currently in Beta testing.
Here’s an overview of the draft legislation:
Part 1 – Preliminary
s. 1: the Title
s. 2: Interpretation. What exactly is the ‘vetting’ referred to in the ‘National Vetting Bureau Bill 2011’ title? Answer: ‘Vetting’ means an examination by the Bureau of its records in relation to prospective employees for the purpose of disclosure of [those employees’] records …’
Phew! At least it only appears to apply to paid employment positions! But wait: ‘Employment’ includes: full time [paid] work, part time [paid] work, work as a volunteer, work whether paid or unpaid with under a contract or not and also additionally placements as part of a course.
Part 2 – Employment Positions Covered by this Act (Persons required to submit vetting disclosure applications)
The long and the short of this provision is a massive extension of the current system for Garda vetting, putting on a mandatory statutory footing the requirement for Garda vetting of criminal records.
The big catch-all section is s.5(1)(d):
‘[people in] other employment working with children or vulnerable adults which involves regular or ongoing unsupervised contact with children or vulnerable adults’
= hello any voluntary organization working with kids? Time to get used to the notion that all your volunteers are going to have be Garda vetted as a matter of course.
Interestingly, the notes to the Bill state that this section ‘is directed at carers and unsupervised health sector employees’ – that might be its intention but in my view the reality is that it embraced a far wider section of potential people requiring vetting.
To be fair, there’s a useful clarification note on p. 11 which points out that it is the nature of the position of employment (not the nature of the employer) that guides whether vetting is required – if the position does not allow access to working with kids or vulnerable adults = appears to be no obligation to get vetted. This does seem to be a relatively fair balancing requirement.
S.6 (“Employment Positions Excluded from this act”) specifically states that family members caring for a child, or a person minding such a child or vulnerable adult in the family home, at a parent/guardian’s request, do not require vetting.
S.6 (c) will be of particular interest to sporting organisations. It’s worth quoting in full:
‘[the following are not required to submit applications for vetting under this Act}: persons assisting on an occasional, ad-hoc, voluntary basis in sports or community or other organisations which involve children or vulnerable adults but where those persons do not have regular or ongoing unsupervised contact with children or vulnerable adults…’
The explanatory note in the commentary on the Bill states that:
‘Paragraph (c) is intended to clarify that a person helping out on an ad-hoc basis, for example at a sports day, or a community event, or a fund-raising event does not have to be vetted, provided that they are not going to have regular or ongoing unsupervised contact with children’.
So it appears that the key words, to trigger the exclusion from the Act (and therefore not to have to undergo the vetting requirement) are:
A voluntary basis in either
- Sports or community or other organisations working with kids and vulnerable adults
For a duration / regularity that is only:
- Occasional, or
And that does not allow:
- ‘regular or ongoing unsupervised access’.
So, it would appear that an annual Horse Show, or Church Fete, Golf Club Youth Fund-Raising Day etc would avoid any vetting requirements as they are once-off; but where regularity and ongoing lack of supervision kick in, then so does the vetting requirement.
Given the balance between safeguarding children and vulnerable adults, and ensuring that there is not an avalanche of bureaucratic red-tape, this seems to be a fair and sensible solution.
The flip-side to the same coin, of course, is that if there is regular or ongoing unsupervised access, then the requirement for Garda vetting goes live.
Part 3 – National Vetting Bureau
S. 7 defines the National Vetting Bureau (that I shall call the ‘NVB’) as having to maintain a list of organisations requiring vetting, with details of the designated person in those organisations charged with liaising with the NVB; maintenance of hard and soft information as further defined later in the Bill; assessment of the records, and disclosure of the relevant information to the liaison personnel.
In short, as the notes say, the NVB replaces the existing Garda Central Vetting Office (GCVO).
Perhaps worryingly however, it replaces it in
‘name only as the work, procedures, systems and reporting structures of that office will continue as is. This approach obviates any requirement to set up any new agency, or to make any new provisions for such issues as staffing, office structures, employment conditions etc’.
Now that IS interesting. The NVB is going to therefore adopt the same methodology as it’s predecessor the old GCVO pursued – and this is meant to inspire confidence in the new vetting regime?
S.9 – Compliance Officers
Here’s where some of the muscle is added to the skeleton of the legislation. NVB staff specially appointed by the head of the NVB (that person being known as the Chief Bureau Officer) will become known as ‘Compliance Officers’, with statutory powers (in order to check compliance) to:
- Enter any organisations’ premises (on reasonable notice) and
- Inspect an organisation’s records (on reasonable notice) and
- Compel disclosure / examination of that and other relevant information as deemed by the Compliance Officer (including access to electronic password protected files) and
- Obtain other such help as requested.
However, an inherent weakness (but probably at that a sensible and constitutionally required weakness) is that the definition of an organisation’s ‘premises’ specifically excludes a private residence. Given that the vast majority of voluntary organisations do not have office space as such but rather operate out of peoples’ kitchens, back yards or in the ‘ether’, some mechanism probably needs to be thought out that allows for productions to the NVB of the relevant information (as otherwise there is an incentive for the non-compliant organisation to ensure that the information is always stored in a private residence that is not subject to the powers of entry and inspected afforded to the Compliance Officers under this section).
Part 4 – Vetting Disclosure Procedures
This Part (s.11) essentially requires any organisation that falls in the remit of the Bill to make an application to the NVB to be listed with the NVB; with the final decision as to whether or not this is required being made entirely at the discretion of the NVB. This is a pro-active registration requirement i.e. the organisation needs to apply pro-actively rather than wait to be asked to do so.
Under s.12 organisations registering with the NVB will have to appoint a liaison person and allow access to records by NVB personnel.
S.12(3) allows an organisation, on receipt of a returned vetting disclosure (a term that is not, but which should be, defined i.e. Vetting Disclosure) from the NVB, to consider that information in the context of the employment position within that organisation.
Under the principles of natural and fair justice, an organisation shall only have to produce to the applicant person a copy of the vetting disclosure if it contains evidence of a criminal record (other than excluded minor on the spot road traffic fines etc) or other relevant information on which basis the applicant is considered unsuitable for employment. If the vetting disclosure is clear, then there is no requirement to share the record with the applicant. Given the number of cases of mistaken identity and administrative error that abound in the Courts etc, it is absolutely right and proper to give people a chance to establish if the vetting disclosure in fact relates to them at all and, if so, whether or not it is accurate.
The Notes point out that ‘the determination of the suitability of the subject for employment is a matter for the organisation in question. This reflects existing practice’.
Section 13 sets out the actual information on the vetting form (mainly personal details).
Section 14 – Relevant Information – is one of the more controversial provisions since it introduces the notion of ‘soft’ information (as opposed to ‘hard’ information such as criminal records). It defines ‘Relevant Information’ as a record of information arising from:
(a) An NVB determination that there are ‘bona fide grounds for believing that a person may cause harm or attempt to cause hard to a child or vulnerable adults, where that belief arises from the investigation of a criminal offence [emphasis added];
(b) A determination (not from the NVB) that there are ‘bona fide grounds for believing that a person may cause harm or attempt to cause hard to a child or vulnerable adults, but where that determination has been made by a listed organisation in Schedule 2 (organisations that conduct relevant disciplinary or investigative proceedings).
The notes state that Relevant Information is not ‘unsubstantiated allegations, rumour, innuendo etc’ – though to my mind this must surely comprise some of what is considered to Relevant Information, given that if the allegations were substantiated, they would have been acted on, and if not, then how can then the allegation be substantiated to be able to be included on the person’s record with the NVB?
Section 15 – Organisations Required to Report Relevant Information to the Bureau
This seems to be an example of unintended consequences. Is it really intended that the National Governing Bodies (NGBs) of all sporting organisations across the island of Ireland, where such an NGB has conducted a disciplinary process which ‘concluded that there is a bona fide reason to believe that a person may harm or attempt to cause harm to children or vulnerable adults’ (s.15(2)), that it has to notify the NVB of such belief stating the reason (s.15(2)(a)), informing the relevant parties? Dangerous tackles committed by youth teams; a manager crossing the line with another manager? What was previously a pitch-side spat between two managers but which warranted disciplinary measures, or an otherwise seemingly innocuous incident, may end up as ‘soft’ information with the NVB.
On that basis, the GAA , FAI and IRFU (and other sporting NGB) disciplinary appeals panels are going to have their hands seriously full, and their legal burdens considerably increased, in coming to a decision as to whether the conclusion of a disciplinary process should trigger a referral to the NVB (to be stored by the NVB under its s.14 ‘Relevant Information’ heading).
Given, too, that the Irish Sports Council’s laudable Code of Ethics & Good Practice for Children’s Sport (that is widely adopted in one form or other by most sporting bodies) defines risk, harm, abuse, bullying, grounds for concern relatively broadly (arguably), given the choice of a 50/50 disclosure to the NVB an NGB is going to have to think long and hard before it assumes the responsibility of not passing on the information to the NVB.
Clearly, as the Bill’s notes suggest, the obligation applies to other non-sporting organisations, including but not limited to religious bodies.
Section 16 – Vetting Disclosures by the Bureau…
Essentially this section points out the information that is actually disclosed on the vetting disclosure, so called ‘hard’ information, when the position does not involve working with children or vulnerable adults.
Section 17 – Vetting Disclosures in respect of positions which involve regular or ongoing unsupervised contact with children or vulnerable adults.
In this instance, the vetting disclosure will disclose both ‘hard’ information (records of prosecutions, convictions, appeals, court orders etc, s. 17(2(a)(i)) and ‘soft’ information (where a determination has been made in accordance with head 20 [see below] that there are bona fide grounds for believing that the person poses a risk to children or vulnerable adults, and no prosecution has occurred in respect of this information [emphasis added] (s.17(2)(a)(ii)); or declare that no record of information exists (like a clean bill of health) (s.c17(2)(b)).
Section 18 mirrors s.17, but in relation to employment positions in state security (as defined).
Section 19 – Deferral of Vetting Disclosure
This section allows a vetting disclosure to be deferred where an investigating organisation has requested such a deferral (s.15(4) or where a vetting disclosure would prejudice an ongoing criminal investigation, criminal proceeding or the detection of prevention of a crime’ (s.19(1)). In that case, no reason for a delay shall have to be given to an organisation’s liaison officer (s.19(2)).
Section 20 – Use of Relevant Information for Vetting Purposes
This section sets out the steps that the NVB will take in reviewing Relevant Information (i.e. the ‘soft’ information). The following are taken into account, and must be considered in writing:
- The requirement to let the subject of the vetting application have the chance to make submissions as to why the ‘soft’ information should not be disclosed to the organisation making the vetting application on their behalf (s.20(2)(c)(i);
- The relevance of the information in relation to risk and especially risk to children or vulnerable adults (s.20(2)(c)(ii) [emphasis added];
- The reliability of the information and whether the information is believed to be true on the balance of probabilities (s.20(2)(c)(ii) [emphasis added – note this sub-section is incorrectly numbered and should read sub-section (iii) not (ii)];
- The proportionality of the information and whether a decision to disclose goes further than necessary, based on the information (s.20(2)(c)(iii)) [emphasis added];
- Whether or not the natural justice rights of the person affected have been adequately safeguarded (s.20(2)(c)(iv) [emphasis added];
- Whether or not the decision to disclose is a reasonable decision in the circumstances (s.20(2)(c)(v) [emphasis added];
If the person being vetted is notified by the Chief Bureau Officer that the NBV intends to make a disclosure of the ‘soft’ information to the organisation that applied, then that person has 15 working days (only) in which to appeal challenging the veracity, accuracy or relevance of the ‘soft’ information.
Section 21 – Disputes and appeals regarding information contained in the proposed vetting disclosure
Part of the appeal can be a request for deletion or correction of the ‘soft’ Relevant Information stored by the NVB (s.21(1)).
The Appeals Officer (who shall be a non-NVB practising solicitor or barrister of at least 7 years’ experience) will then have full power to process the Appeal under the written considerations put forward by the NVB, together with the applicant’s own reasons for the appeal.
Where the Appeals Officer requires a modification or erasure / deletion of the ‘soft’ information, then the NVB must comply and issue the modified vetting disclosure accordingly.
The failure to impose a deadline on the appeal system is addressed in the notes, which state that ‘given the nature of the appeals officers and the various issues which can cause delay such as non-availability of certain individuals, it is considered appropriate that a definitive deadline is not imposed’ (other than ASAP).
This does seem like a classic case of following on from previous administrative appeals bodies such as in relation to immigration cases, where gross delay and inconsistency of decision-making gave the entire system a less than rock solid reputation. This should be re-considered.
Part 5 – Miscellaneous
Section 23 – Falsifications etc
In short, if the system is abused, penalties range from a €5,000 fine or 12 months in prison up to a €10,000 fine and 5 years in prison. In particular, these penalties are applicable where organisations employ people without having undergone the vetting disclosure process; and where even where the disclosure is obtained, reasonable grounds exist for believing that a risk to children may be posed by an already NVB-vetted individual.
In summary: the times they-are-a-changing. Vetting is going to be widespread, the obligation is going to be on the organisations to get themselves registered; and there is going to be, in my view, a real mess to deal with the inclusion of so-called Relevant Information (i.e. ‘soft’ information). The underlying theme is appropriate: bringing measures to enhance the safeguarding of children and vulnerable adults up to scratch. The test will be whether the right balance has been found, and whether the increased compliance measures put more people off than encourages people to join.
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