Garda Vetting is carried out by the National Vetting Bureau (GNVB) of An Garda Síochána. The National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 to 2016 provide a statutory basis for the vetting of anyone whose work or activity involves access to children or vulnerable adults. The Act also creates offences and penalties for persons who fail to comply with its provisions.
The Act stipulates that a relevant organisation shall not permit any person to undertake relevant work or activities on behalf of the organisation, unless the organisation has received a vetting disclosure from GNVB.
The Department of Justice is undertaking a review of vetting arrangements and legislation. The focus of the review will be on two main areas:
In October 2019, the Attorney General’s Office advised that section 20 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 (as amended) would require amendment before it can be commenced, and that the specific regime proposed by An Garda Síochána in relation to re-vetting would treat persons in similar situations differently to such a degree that it ran the risk of successful constitutional challenge.
The difficulties with section 20 are:
Given the seriousness of the concerns, the advice is that an amendment to section 20 is necessary. Having reviewed the advice, the Department proposes that the amendment should go beyond merely rectifying the wording of section 20 and that it would be safer to incorporate the detail of the proposed re-vetting regime in primary legislation (but with a power to vary the prescribed periods and intervals by regulation).
Re-vetting regime now proposed
The Garda authorities are proposing that re-vetting of disclosures under the statutory framework take place every 3 years, i.e. that the obligation on an employer, service provider, or voluntary organisation (‘a relevant organisation’) to make a new application be triggered 3 years (36 consecutive months, rather than as from the next following 1 January) after the original disclosure was issued. In the case of a person employed etc. prior to commencement of the 2012 Act, the application to bring such a person within the frame of the Act would be triggered 7 years after the vetting information was originally provided. Legal advice has stated that if a fixed period (e.g. 3 years) is prescribed, it means that the same 3 year period applies to every vetting disclosure regardless of when in the year the vetting disclosure was issued, which addresses the issues raised by Parliamentary Council.
The Irish Universities Federation approached the Department in relation to third level courses involving placements working with children for which vetting is required. Such courses may last 4 to 5 years, and the re-vetting regime should allow for exceptions such as these. i.e. not create a re-vetting requirement for the final academic year (which would be a period of six months in reality).
It has also been suggested that a transitional regime that does not treat persons vetted under the old non-statutory regime more favourably than persons vetted in the early years of the new regime, should be included.
During the Covid 19 Pandemic, it became apparent that there were additional issues around the application of the Vetting Act, in relation to specific employments needing to be re-vetted due to changes to their working situation which arose out of restrictions during the pandemic.
In summary, the Act has the effect of mandating a highly segmented approach to vetting in which each of 26 separate clauses in the Schedule to the Act (15 referring to children and 11 to vulnerable adults) is subject of a separate vetting procedure and a vetting disclosure applies only to activities in the relevant clauses which are specified. This was not the intention when the legislation was being enacted.
Given the proposed introduction of a re-vetting requirement after 3 years, it is proposed – subject to further consultations – to move to a system in which a person is vetted for the work they will be or are likely to be engaged in in that employment within categories of identified risk, rather than treating each clause in isolation, and taking into account likely additional responsibilities (e.g. after probation is complete) within the same employment role. Redeployment on promotion, or to a substantially different job would continue to require re-vetting.
Free of charge
Friday 29th April 2022
11am – 12.30pm
Online via Zoom
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