Betting on vetting

Mr Justice Barr has held that certain provisions of the vetting legislation are unconstitutional. It now appears that the mechanism underlying this process may have been achieved at the expense of the fundamental rights of those working at the coalface. Emma Foley BL and Clare Daly raise the stakes

The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 (the Vetting Act) introduced a statutory system of safe recruitment of individuals who engage in relevant work with children or vulnerable persons.

The act is aimed at providing a structured vetting process by ensuring employers know who they are hiring, from a child and vulnerable-adult standpoint. But has the deck been stacked against the vetted?

Can the State receive, retain, and rely upon "highly discreditable information" without informing the subject as to the content of those allegations?

In a recent case, the High Court considered the fairness of the vetting process, wherein a data subject is not informed of – nor thus able to challenge – information held in the vetting register until a future employer asks for a vetting disclosure, a situation the court likened to "playing Russian roulette".

The Vetting Act comprised part of a tripartite legal framework introduced in 2012, and fully implemented by 2016, to enhance child protection. Historically, child abuse had thrived in an era of silence and voluntary submissions.

Statutory regime

This legislation sought to impose statutory regimes compelling information sharing, disclosures of concern of harm, and information concerning certain scheduled criminal acts against children and vulnerable persons.

This trio of legislation included the Children First Act 2015 and the Criminal Justice Withholding Act 2012, wherein each sought to address disclosures of harm and knowledge of criminal activity.

They set out to legally mandate vetting, require mandatory reporting by professionals, and to criminalise withholding of information about certain crimes.

The Vetting Act established the National Vetting Bureau, and certain relevant organisations were thereafter obliged to obtain vetting disclosures in respect of any and all employees and volunteers in their organisation.

The act also introduced a new legal definition of 'specified information' that could comprise part of a vetting disclosure.

Bona fide concern

'Specified information' is information concerning a finding or allegation of harm received by the bureau from a scheduled organisation or by an Garda Síochána, and which is of such a nature as to reasonably give rise to a bona fide concern that a person may harm, cause harm, put at risk of harm, attempt to harm, or incite another person to harm any child or vulnerable person.

'Scheduled organisations' set out in schedule 2 of the Vetting Act include the Child and Family Agency, HIQA, the National Transport Authority, and a number of professional regulatory bodies.

The threshold for submission of specified information by a scheduled organisation to the bureau is that the information raise a bona fide concern. Once that threshold is reached, it must make the notification "as soon as may be" or be guilty of an offence under section 19(8) of the Vetting Act.

The bureau retains this information on a Register of Scheduled Information, which is reviewed when a disclosure request is made by a relevant organisation.

Section 19(3) requires the scheduled organisation to notify the person of the fact that it has such a concern and of its intention to notify the bureau of it.

No obligation

However, the act places no obligation to tell the person what was contained in that specified information. Therefore, the person is not entitled to the details of the specified information concerning them while it remains in the register.

However, if a vetting disclosure request is submitted, then the data subject is made aware of the specified information held in the register concerning him or her. This vetting disclosure must issue from a third-party organisation.

Once the specified information to be disclosed has been identified, a copy of the material is supplied to the vetting subject. Save for that exercise, however, the person is not entitled to see what specified information concerning them is held in the register.

The key issue that arose in this case was whether the refusal to provide the person with specified information concerning them at the time the bureau received the specified information, and the retention of that information, was a breach of the Vetting Act.

Unconstitutional

The court determined that this was not a breach of the act but, rather, that the act itself was unconstitutional and in breach of the European Convention of Human Rights.

The High Court's decision in DO'C and KL v GSOC & Ors examined the inner workings of the legislation as regards how specified information is shared (or not shared) with a data subject, how it is retained and used by the bureau, and the constitutionality of those mechanisms.

The case concerned two gardaí who had participated in the arrest of a juvenile following a pursuit. A complaint was made to the Garda Síochána Ombudsman Commission, alleging excessive force during this arrest, resulting in an investigation by GSOC that in turn led to a file being sent to the DPP.

The DPP ultimately directed no prosecution and, moreover, GSOC had also decided not to pursue any disciplinary proceedings against the two gardaí.

At the time of referring the matter to the DPP, GSOC also referred specified information to the bureau pursuant to section 19(1) of the Vetting Act, arising from a bona fide concern that the two gardaí subject to investigation may harm or cause a risk of harm to children or vulnerable persons.

Twofold basis

The case was argued on a twofold basis. First, the applicants contended that the process engaged in by the respondents breached the provisions of the Vetting Act. Secondly, they argued that the act itself was repugnant to the Constitution and incompatible with the European Convention on Human Rights.

The court rejected the argument that the bureau and An Garda Síochána had acted contrary to the provisions of the act. However, it accepted that sections 10, 15, and 19 of the act were repugnant to the Constitution and the convention.

The central issue concerned whether the applicants' constitutional rights to fair procedures and to their good name were infringed by the retention of specified information on the register without disclosure to the data subject.

The respondents argued that the submission of specified information pursuant to section 19 did not require notification to the data subject at the point of submission or retention.

It was contended that fair procedures were sufficiently provided later in the process, if it was determined that the information ought to be disclosed in the context of a vetting application.

At that stage, the vetting subject would be notified of the proposed disclosure, furnished with a copy of the specified information, and afforded an opportunity to challenge the release of the material.

The vetting subjects' right to fair procedures were, therefore, engaged at the disclosure stage, insofar as the rights of the person are adequately catered for at this stage in the process and, therefore, the Vetting Act does not breach the person's constitutional right to fair procedures or their right to a good name.

However, this argument was rejected: "The court does not accept the submission that the applicants' rights to fair procedures only arise at the disclosure stage."

Constitutional rights

The court held that constitutional rights are engaged when highly discreditable information is retained in the register, and not at the point of disclosure. The court emphasised that the categorisation of such information as 'red flag' or 'soft intelligence' did not diminish its seriousness.

The two gardaí were informed that the section 19 referral had been made, but were not provided with the information contained in that referral.

Arising from this, one of the applicants ultimately consented to a vetting disclosure being sought by a sporting organisation, solely in an effort to ascertain the nature of the specified information held about him.

Mr Justice Barr noted: "The only way that the applicants can hope to learn what has been said about them … is by getting some third party to make a request for a vetting disclosure on them. For the applicants, it is like playing Russian Roulette."

The judge found that a person cannot defend themselves against a hidden allegation, cannot correct inaccuracies or protect their reputation, and cannot meaningfully exercise procedural rights if the law withholds the substance of an allegation from them.

Intolerable

The court accepted that the applicants' position was intolerable because they knew enough to know they had been accused of something grave, but not enough to defend themselves: they are "left in a situation where they must go about their ordinary lives as members of An Garda Síochána and, at least in one case, as a father, knowing that there exists on a database held by the NVB information which suggests that they pose a risk to children and vulnerable adults."

It was submitted on behalf of the applicants that their constitutional right to their good name and their right to fair procedures meant that they had a right to be informed of the specified information that had been notified to the bureau and, if necessary, to challenge its accuracy.

The court further rejected the contention that the right to fair procedures only crystallised once a vetting-disclosure request had been made and a preliminary decision to disclose had been reached by the chief bureau officer (CBO).

Barr J held that the right to fair procedures arose immediately upon receipt and retention of the specified information by the bureau: "The right to be heard is not suspended until a vetting disclosure request is received and until the CBO makes a preliminary decision that it ought to be disclosed."

Repugnant

Ultimately, the court found that the "making of a notification of specified information" and its "retention on the register of specified information, without any opportunity being given to the data subject to have sight of that information or to challenge its accuracy until the disclosure stage, constitutes a breach of the constitutional rights of the applicants".

In all, the court held that sections 10, 15 and 19 of the Vetting Act are repugnant to the Constitution.

The court also found a breach of article 8 of the European Convention of Human Rights (the right to private life), relying on established authority, such as S and Marper v United Kingdom and Rotaru v Romania, both of which recognise that State retention of personal data can interfere with private-life rights.

In doing so, the court was critical of the absence of any meaningful mechanism for amendment or correction of specified information on the register, other than the limited mechanism contained in section 19(4) of the act.

Safeguarding concern

For 13 years, child safeguarding in Ireland has been built on a simple and widely accepted premise that if you want to protect children and vulnerable adults, you must know who you are recruiting.

The Vetting Act made vetting mandatory for the first time and required those wishing to work or volunteer in schools, clubs, hospitals, care homes, and sporting organisations to seek a vetting disclosure prior to doing so.

It now appears, however, that the mechanism underlying this process may have been done at the expense of the fundamental rights of those working at the coalface of such organisations. Moreover, this decision now leaves a gap on how hiring organisations will safeguard in the interim.

Emma Foley BL is legal counsel general manager and Clare Daly is general manager – legal advisor in the Office of Legal Services in Tusla. Thanks to Darragh Sheehy (trainee solicitor) for his assistance with earlier drafts of this article.