Laws of Vetting & AccessNI
Religious discrimination in employment has been unlawful since the introduction of the Fair Employment Act 1976. The development of Fair Employment legislation has been affected by forms of affirmative action through which employers have to confirm ‘fair participation’ by religion and political opinion. In 1998, for example, the Fair Employment legislation introduced compulsory monitoring by employers and a range of affirmative action measures. It permitted affirmative action and the option of setting goals and timetables for improving employment patterns and working towards fair participation in workplaces. However, since 1976 there has been an exception now in Section 2(4) of the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) which states that;
‘In this Order any reference to a person’s political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public or any section of the public in fear’.
The continuation of Article 2(4) limits the protection for those with conflict-related convictions. In essence, any person with a conflict- related conviction, even if they meet the criteria of an advertised post, can be legally excluded from employment or interview.
Rehabilitation of Offenders Order (Northern Ireland) 1979 is a further mechanism related to disclosure. Commonly understood as operated via AccessNI checks the information obtained regarding convictions can be used by an employer to determine if the conviction renders an applicant or employee suitable for employment. As well as entry to specific occupations, licences or permits it also permits the exclusion of an individual from employment if they have failed to disclose convictions when that evidence is/was sought. The period in Northern Ireland for which a custodial order cannot be spent is 30 months. In the vast majority of cases conflict-related convictions are rarely spent.
Counter Terrorist Check (CTC)
CTC is mandatory for any person employed in posts involving proximity to public figures who would be assessed as being at risk from terrorist attack. It is also mandatory for any individual who will have access to any information or material that would be sought by terror groups, or those who will have unaccompanied access to any sites such as military bases, police stations or other places such as civil, industrial or commercial premises that would be viewed as being at particular risk from terrorist attack. CTC clearance is achieved via;
- Completion of a security clearance questionnaire by the candidate;
- Baseline Personnel Security Clearance (BPSC) requiring all government departments to vet all personnel employed/or engaged by (irrespective of working contract) them to work in their premises or on their systems, access to the Public Service Network or in places where secret information may be overheard.
Security Check (SC)
A SC is the most commonly used process through which to gain security clearance. Those who will have access either as a direct employee/or employee of a contractor to information classified as secret on a regular/ or occasional basis which is supervised requires the successful completion of a SC. It also includes those whose career trajectory may at some point require such clearance. A SC includes information regarding personal files, staff reports, sick leave returns and security records, the checking of spent and unspent convictions and a Security Service (MI5) records evaluation. It will also include checks upon any third parties listed on a Baseline Personnel Security Standard.
Developed Vetting (DV)
DV is understood as the most all-inclusive type of security clearance. It is required for “long term, frequent and uncontrolled access to TOP SECRET information or assets…. or in order to satisfy requirements for access to material originating from other countries and international organisations”.
It includes successful completion of the Baseline Personnel Security Standard, for the applicant to complete a security questionnaire, a developed vetting, a developed vetting Supplement and Financial Questionnaire. It also includes reviews of personal files, staff reports, sick leave returns and security records. All spent and unspent convictions will be checked as will the applicant’s credit and financial history with a credit reference agency. As with each of these security clearance checks information will be required for natural parents, adoptive parents, foster parents, step-parents, legal guardians, siblings and partner’s father and mother.
For certain types of work or activity an employer or voluntary/community organisation may need to ask you for a criminal record check from AccessNI. The table gives more information about this;
|Type of check
|Nature of work
|Unspent convictions only
|Working for the civil service or on a contract with acccess to Govt. buildings, some public sector employers and on the airside of an airport. Basic checks can be sought by any employer
|Spent and Unspent convictions, cautions etc.
|Obtaining a licence with the Security Industry Authority, pharmacutical delivery drivers etc.
|Enhanced (no barred list check)
|As Standard together with relevant police information
|Taxi licences and some working within the health and further education sector
|Enhanced with barred list check
|As Enhanced, plus a check of the lists of those not allowed to work with vulnerable groups
|Working closely with children in employment or voluntary work, including child-minding, fostering and adoption or working in certain tasks with adults including providing health or personal care
For standard and enhanced checks, AccessNI will not disclose (filter) old and minor convictions on certificates, subject to legislation. Serious offences, offences that carry a sentence of imprisonment (including suspended sentences) and where there is more than a single conviction will always be disclosed. Recent changes to legislation now mean that an individual does not have to disclose to an employer any conviction information that is filtered from an AccessNI standard or enhanced certificate.
AccessNI certificates provide information about criminal records held on the Police National Computer (PNC) database. This holds information about recordable offences. So, some offences will not be disclosed on any AccessNI check including;
- Minor motoring offences, such as no seat belt, use of mobile phone etc
- Fixed penalty notices for speeding or participation in a driver awareness course;
- Parking offences; and
- Bye-law offences such as dog-fouling in a public park.
Any person can apply directly to AccessNI for a basic check for any reason. Some employers are registered with AccessNI to countersign basic checks (known as a Responsible Body) and they will advise you about this. No individual can apply for a standard or enhanced check. In all cases this must be done through a body registered with AccessNI (Registered Body). Your employer or voluntary organisation will tell you how to do this.
These checks aid employers and voluntary organisations in making ‘…safer recruitment decisions and can also prevent unsuitable people from working with vulnerable groups, including children
Some individuals, as part of the Northern Ireland Executive’s safeguarding policy, are not permitted to work with vulnerable groups. They are known as “barred persons”. In Northern Ireland it is the Disclosure and Barring Service (DBS) that makes these decisions.
The relevant legislation that enables DBS to place individuals on a list that prevents them working with such persons is the Safeguarding Vulnerable Groups (NI) Order 2007.
All organisations registered with AcessNI are subject to a statutory based Code of Practice. This means they must;
- observe guidance issued or supported by AccessNI on the use of disclosure information;
- and, in particular, recipients of disclosure information shall not unfairly discriminate against the subject of disclosure information on the basis of conviction or other details revealed.
- have a written policy on the recruitment of ex-offenders, so that a copy can be given to all applicants for positions where a disclosure will be requested;
- ensure that a body or individual at whose request applications for disclosures are countersigned, has such a written policy and, if necessary, provide a model for that body or individual to use.
In order that persons who are, or may be, the subject of Disclosure information, are made aware of the use of such information; and be reassured, employers shall:
- ensure that application forms for positions where Disclosures will be requested contain a statement that a Disclosure will be requested in the event of a successful application, so that applicants are aware of the situation;
- include in application forms or accompanying material, a statement to the effect that a criminal record will not necessarily be a bar to obtaining a position, in order to reassure applicants that Disclosure information will not be used unfairly;
- discuss any matters revealed in Disclosure information with the person seeking the position before withdrawing an offer of employment;
- make every subject of a Disclosure aware of the existence of this Code of Practice and make a copy available on request; and
- Handle information provided by AcessNI in line with the Data Protection Act 1998.
If an applicant believes that a Registered Body has not complied with the Code of Practice, they should report this to AccessNI for investigation.
Changes to Access NI
On 2nd November 2015, the Department of Justice made significant changes which provided additional safeguards for those applying for Access NI checks to ensure that the service is compliant with human rights requirements. In sum, the changes are:
- Access NI will no longer provide certificates for standard and enhanced checks to the employer. Only the applicant will now receive a copy, and the employer will only be able to see any information disclosed if the applicant wishes to continue with the recruitment process;
- Where police information is disclosed other than that contained in criminal record information, the applicant can appeal to an independent monitor to review the information if the applicant believes the information is not relevant to the job they are applying for or should not have been disclosed; The statutory test applied by the police for releasing information will change from ‘might be relevant’ to ‘reasonably believes to be relevant’. Statutory guidance for chief officers of police has been introduced to assist police in deciding whether information should be disclosed on enhanced certificates.
A further safeguard was introduced in March 2016, in that anyone who receives a certificate with criminal record information can provided the information is considered spent, seek a review of the disclosure of that information with an independent reviewer. The Department of Justice has published statutory guidance for the reviewer to which he must have regard