JOINT COMMITTEE ON JUSTICE, DEFENCE AND EQUALITY debate -
Tuesday, 27 Mar 2012

Private Security Appeal Board: Discussion with Chairman Designate

Chairman

On behalf of the joint committee, I welcome Mr. Graham Hanlon, chairman designate of the Private Security Appeal Board, and thank him for appearing before us. The purpose of the meeting is to have an engagement with the chairperson designate of the board. I ask everyone to ensure their mobile phones are completely switched off, not merely left in silent mode, because they interfere with the recording system.

I draw Mr. Hanlon's attention to the fact that witnesses are protected by absolute privilege in respect of the evidence they give to the joint committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they do not criticise or make charges against a person or persons or an entity, by name or in such as way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they do not comment on, criticise or make charges against a person or persons outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

Mr. Graham Hanlon

I am more than pleased to appear before the joint committee on foot of my nomination by the Minister for Justice and Equality to serve as chairperson of the Private Security Appeal Board. I am duly honoured to accept the nomination.

I have been a member of the Private Security Appeal Board for approximately four years. I have been a practising solicitor since 1995 and vice chairman of the Employment Appeals Tribunal for a number of years. I have been involved in other non-governmental organisation associated with the United Nations for the past 15 years, culminating in heading up a global organisation, Junior Chamber International, involved with the United Nations for more than 60 years.

The Private Security Appeal Board has been working since 2007-08 on foot of the Private Security Services Act 2004. As members may be aware, the legislation was introduced to regulate the security industry, both individuals and companies providing security services. This includes people providing door security and other security services, as well as alarm installation services and so on. The board was established under the Act to allow people who were not happy with decisions of the Private Security Authority, the body which issues licences, to appeal its decisions or recommendations to the Private Security Appeal Board.

The committee may have been briefed on the statistics for the Private Security Appeal Board for recent years. It is important to point out that the last meeting of the board was held in June last year. The board comprises four members. Under statute, the chairperson must be a practising solicitor or barrister and there is a requirement that no member of the board be over 70 years. Appointments were due for renewal at the end of 2011. As the last meeting of the board was held last June, a number of appeals have been filed and some requests for oral hearings have not been determined.

In addition, the committee may have been briefed on the costs involved. It is up to members to determine whether the costs are moderate in the circumstances. The fee payable by an appellant has been set at €125 for a company and €25 for an individual appealing a decision of the Private Security Authority. The fee has not been struck on the basis of ensuring the board functions as a self-financing entity but to ensure appeals are not frivolous or vexatious, yet affordable for anyone who feels genuinely aggrieved by a decision of the authority.

There have been a number of amendments to the Act on foot of recent legislation, for example, the Civil Law (Miscellaneous Provisions) Act 2011, which will have the effect perhaps of making the work of the board more efficient. Historically, a number of appeals came before the board which, if the authority had the opportunity to allow consideration of further documentation, or an appellant for licence had the ability to resubmit documentation to the authority, that might well have dealt with the application. Appeals were coming before the appeals board and it appeared the legislation did not allow for the authority to consider anything else submitted to it after it made its decision. It looks as if that area has being rectified by the Civil Law (Miscellaneous Provisions) Act 2011 and we anticipate it may reduce the number of appeals coming before the board. That is a synopsis of where the board has been in recent years.

My experience to date is that it has been worthwhile to have such an appeals board in place. Figures have been furnished to the committee in respect of the number of appeals granted. One could suggest that has allowed people who have been successful in getting a licence to get out into the real economy and create employment and generate income for the Exchequer. On the other hand, it is the authority that grants the licences. In that sense the Act allows the authority to take into account the character of an individual who applies for such a licence which the Oireachtas considered was important in regard to what can be seen as a delicate area, that is, the provision of private security services.

I am happy to answer any questions from members in respect of the workings of the appeals board to date.

Deputy Terence Flanagan

I thank Mr. Hanlon for appearing before the committee. Where a security licence is revoked, how is it that security companies are allowed continue in business? Is there a loophole in the legislation?

Mr. Graham Hanlon

The Act provides that anyone who is providing a service without a licence is liable to prosecution and conviction. If a person appeals to the board on foot of a refusal by the authority and does not have a licence to operate a security service, the person should not provide a service. I cannot comment beyond that because we are not the authority. We deal only with a licensee who had a licence granted for two years and was refused a licence, or an appellant who is applying for a licence and may be moving from one industry to another and wishes to get into the security industry. The appellant must be licensed to provide that service. It is not for the board to prosecute, we are an appeals board in respect of decisions of the authority. I cannot comment other than to say that the Act does not allow people to provide a security service without a licence.

Deputy Terence Flanagan

How many cases are under appeal? How long does an appeals process take from beginning to end?

Mr. Graham Hanlon

When an individual is notified by the authority that he or she has been refused a licence, he or she has one month in which to file an appeal with the appeals board. The appeals board can seek further information if it so requires in respect of the appeal being lodged. There may be some further documentation that would be beneficial to us when considering the appeal. We have to deal with 30 appeals. Most appeals are dealt with by the appeals board in private and by the four members in a room in the Department of Justice and Equality examining the file, looking at the appeal papers filed by the appellant and then considering the reply from the authority itself. There are approximately five oral hearings. Any appellant has a right to request an oral hearing. It has been the view of the board that if an oral hearing is requested it should be granted to allow people the opportunity to come before the appeals board and state what they wish to say.

The Deputy will see from the briefing notes the number of sittings. The board generally sits about seven times a year. It is unfortunate that we are where we are in that some people would have filed appeals last June and have not been heard yet. We all understand the reason for that. In general, if a person files an appeal within a month of being refused, there is no reason it should not come before the board within two to three months if he or she has not requested an oral hearing.

Deputy Terence Flanagan

What is the normal turnaround time for a decision when a case goes to appeal?

Mr. Graham Hanlon

In the past we have tended to make our decisions fairly promptly. On a case-by-case basis, they can be very different. In respect of the cases that have not requested an oral hearing, the decision can be straightforward in our determinations. Under the new Act, we pass a recommendation back to the authority. We are in a new area in that before we had the Act it appeared we could make our own decision. In reality, under the Civil Law (Miscellaneous Provisions) Act 2011, it is the authority that grants the licence. The Act provides that we make a recommendation to the authority and the authority will notify the appellant of our decision. The Act provides that the authority is bound by that decision. In the appeals that are not oral hearings the determinations are fairly prompt.

Deputy Terence Flanagan

As regards the 30 appeals before the appeals board, how long will it take to process them and for how long are they outstanding?

Mr. Graham Hanlon

I assume that some are outstanding in excess of 12 months, obviously there are some that are not outstanding that long.

Deputy Terence Flanagan

Are any cases unresolved for more than two or three years?

Mr. Graham Hanlon

There may be one or two cases where we have not heard from the appellants and we have not deemed them abandoned yet. The Deputy will see from the figures that it appears more appeals were received by the appeals board than actually tallies with the determinations made. That has been accounted for by appeals being withdrawn or by the appeals board not being able to contact the appellant. In some cases, in view of the year it happened, perhaps some people were moving from one industry into the security industry but many may have been expatriates and went back home to their own country and we have no way of contacting them. At some stage we have to deem those abandoned. There may be one or two such cases. I expect that most of the 30 appeals have been lodged since June.

Deputy Terence Flanagan

Is there now a situation where companies are operating with licences but are under appeal at the same time?

Mr. Graham Hanlon

I cannot actually say that and I cannot advise the committee because of the fluctuation of time. In addition, I cannot say when we will be in a position to start our own work again because I am not aware whether appointments have been made. There are four members on the appeals boards. I am aware only of my own nomination. I presume there are other nominations but I am not aware whether they have been approved by the Government. As soon as we are in a position to get working on these appeals it is my determination as chairman to ask for a meeting of the appeals board to be convened immediately in order that we can deal with the bulk of the appeals. There are about five oral hearings. Where there are oral hearings the Department tries to balance the conflicting diaries of counsel because often the appellants are represented. The authority is also legally represented at these appeal hearings. In the normal course, these cases should be worked through within a matter of months.

Deputy Terence Flanagan

Does Mr. Hanlon consider the appeals process may be flawed if a company continues in business while appealing its licence without providing any new information?

Mr. Graham Hanlon

The legislation prohibits a person operating without a licence. Technically, one should not operate without a licence.

Senator Martin Conway

I congratulate Mr. Hanlon on his appointment. The discussion was interesting as was the discussion with Deputy Terence Flanagan.

I have a simple question. If somebody is refused a licence by the authority and he or she appeals to the board, is that person not supposed to practise having been refused by the authority, pending the appeal?

Mr. Graham Hanlon

My understanding of the legislation is that a person is not supposed to practise without a licence.

Senator Martin Conway

Are there many practising without licences at present?

Mr. Graham Hanlon

I have no knowledge of that.

Senator Martin Conway

There lies the problem. We have unearthed something that needs an immediate investigation. Mr. Hanlon is possibly not the person to carry out such an investigation. I suggest that the committee write to the Garda Commissioner pointing out that there may be people without licences, pending an appeal-----

Chairman

I am sorry to interrupt the Senator. We should invite the authority as the statutory body, not the Garda, and then we could question it on the matter.

Senator Martin Conway

I will take the Chairman's guidance. Can a limited company seek a licence? Perhaps my question is for the authority but I ask Mr. Hanlon to give us some guidance on the issue.

Mr. Graham Hanlon

Yes. It must have one if it is providing security services.

Senator Martin Conway

Are a number of individuals working in the company required to have a licences?

Mr. Graham Hanlon

Again, the Senator's question is best suited to the authority. My understanding is that if the company is licensed then its employees are required to display the badges the PSA issued them. I imagine that in the company's application to the authority, and I do not have direct experience of it, it will have listed the people that it wishes to have as its employees to provide the security service.

Senator Martin Conway

While the security industry has been cleaned up a lot, it still needs considerably more cleaning up.

Mr. Graham Hanlon

I am not the person who is best able to answer that. As the Chairman has rightly pointed out, the authority issues licences and is better able to deal with both of the Senator's questions.

Senator Martin Conway

I take Mr. Hanlon's point but he is the final arbiter of appeal.

Mr. Graham Hanlon

With regard to the decision of the authority, yes. Under the new Act we are now in a position to make a recommendation back to the authority.

Deputy Jonathan O’Brien

Can I get a sense of why somebody would be refused a licence? I presume the board would have that information because people submit their appeals to it. What is the most common reason people submit an appeal?

Mr. Graham Hanlon

Everyone who applies for a licence must also go through a Garda vetting process. The Act allows the authority to refuse someone a licence based on character. Vetting results can impact on character. Very often the appeals board looks at the Garda vetting report and it may convince us that the authority was correct in its refusal of a licence. I am reluctant to get into specifics, but perhaps there is a history of convictions that would alarm the appeals board if such an individual carried a licence to provide security services.

Deputy Jonathan O’Brien

Is it decided on a case-by-case basis?

Mr. Graham Hanlon

Yes.

Deputy Jonathan O’Brien

Is any other criteria applied?

Mr. Graham Hanlon

It is very much done on a case-by-case basis. There are criteria on alarm installations, NSAI requirements and authorisations. For example, the authority could seek a Garda vetting report on an individual doing door security. The authority can have a number of reasons to refuse a licence. When an appeal comes before the board and we examine the Garda vetting report, very often it is obvious why the licence was refused.

Deputy Jonathan O’Brien

Does the board have the power to overturn its decision? If the authority refuses a licence for a particular reason, and perhaps it was based on the Garda vetting report, does the board have the scope to examine the application in a broader sense?

Mr. Graham Hanlon

Yes, it is an interesting question. We have done so in other circumstances. I am loth to go beyond that, but an example would be where it was unclear that the Garda vetting report was of such a nature as to preclude someone from seeking gainful employment and returning to the community. For example, the Deputy would draw a distinction between a speeding ticket which is technically a criminal sanction and something of a more heinous nature which might be seen to put members of the public at risk.

Deputy Jonathan O’Brien

Following the recent change, the board can make a recommendation to the authority. Does the latter have to take on board the recommendation?

Mr. Graham Hanlon

From the reading of the Act, it does. The Act goes on to state "The authority shall give effect to any such recommendation". The amendment to the Act recognises that it is the authority that grants the licence and not anyone else.

Deputy Jonathan O’Brien

Is it a technical issue?

Mr. Graham Hanlon

Yes, it is a technical issue. Effectively, the reading of the Act means the authority would be bound by any recommendation that we made.

Chairman

I have a question on standards and training. Has the board dealt with cases where inadequate training was given to people deemed to be practising in the security industry?

Mr. Graham Hanlon

Off the top of my head one case comes to mind where a required certificate was not in place by the operator and the authority seemed to make a decision on that and on a number of other matters. I am speaking from recollection and I cannot say if that was the sole reason the authority refused a licence, but I remember it being an issue in one case which went to an oral hearing.

Chairman

I thank Mr. Hanlon for attending and for engaging with us. Is it agreed that the committee will inform the Minister that we have concluded our discussions with Mr. Hanlon and will forward a copy of the transcript to the Minister for his information? Agreed. I wish Mr. O'Hanlon every success in his new role.

Deputy Charles Flanagan

Will the committee invite the board to attend a follow up meeting?

Chairman

I will get to that in a moment but I want to let Mr. Hanlon go. I thank him and wish him well. We may engage with him in the future.

Mr. Graham Hanlon

I thank the Chairman and the members of the committee.

Chairman

We will go into private session.

The joint committee went into private session at 4.25 p.m. and adjourned at 4.30 p.m. until 2.30 p.m. on Wednesday, 28 March 2012.