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Protection of Vulnerable Groups (Scotland) Act 2007

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S

Protection of Vulnerable Groups (Scotland) Act 2007

2007 asp 14

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 8th March 2007 and received Royal Assent on 18th April 2007

An Act of the Scottish Parliament to bar certain individuals from working with children or certain adults; to require the Scottish Ministers to keep lists of those individuals; to make further provision in relation to those lists; to establish a scheme under which information about individuals working or seeking to work with children or certain adults is collated and disclosed; to amend Part 5 of the Police Act 1997; to amend the meaning of school care accommodation service in the Regulation of Care (Scotland) Act 2001; and for connected purposes.

Part 1 SThe lists

Duty to keep listsS

1Duty of Scottish Ministers to keep listsS

(1)Ministers must keep—

(a)the children's list, and

(b)the adults' list.

(2)An individual may be listed in—

(a)the children's list,

(b)the adults' list, or

(c)both lists,

only in accordance with this Part.

(3)In this Act, “listed”, in relation to an individual, means included in the children's list or, as the case may be, the adults' list, and references to listing an individual are to be construed accordingly.

Commencement Information

I1S. 1 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

ReferralsS

2Referral groundS

The referral ground—

(a)in relation to an individual who is or has been doing (or has been offered or supplied for) regulated work with children, is that the individual has, whether or not in the course of the individual's work—

(i)harmed a child,

(ii)placed a child at risk of harm,

(iii)engaged in inappropriate conduct involving pornography,

(iv)engaged in inappropriate conduct of a sexual nature involving a child, or

(v)given inappropriate medical treatment to a child,

(b)in relation to an individual who is or has been doing (or has been offered or supplied for) regulated work with adults, is that the individual has, whether or not in the course of the individual's work—

(i)harmed a protected adult,

(ii)placed a protected adult at risk of harm,

(iii)engaged in inappropriate conduct involving pornography,

(iv)engaged in inappropriate conduct of a sexual nature involving a protected adult, or

(v)given inappropriate medical treatment to a protected adult.

Commencement Information

I2S. 2 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

3Reference following disciplinary action etc.S

(1)An organisation must give Ministers any prescribed information which it holds in relation to an individual who is or has been doing regulated work if—

(a)it has, on the referral ground—

(i)dismissed the individual, or

(ii)transferred the individual to a position which does not involve that type of regulated work, or

(b)it would or might have dismissed or so transferred the individual on the referral ground if the individual had not—

(i)otherwise stopped doing regulated work, or

(ii)been working for the organisation for a fixed term.

(2)An organisation must give Ministers any prescribed information which it holds in relation to an individual who has been doing regulated work if—

(a)the individual stops doing the regulated work in circumstances not falling within subsection (1),

(b)the organisation subsequently becomes aware of information which it was unaware of when the individual stopped doing regulated work, and

(c)the organisation considers that, if—

(i)it had been aware of that information at that time, and

(ii)the individual had not stopped doing regulated work,

it would or might have dismissed the individual on the referral ground.

(3)In subsections (1) and (2)—

(a)an individual suspended from regulated work is not to be treated as having stopped doing that work, and

(b)the duty to give Ministers information in relation to the temporary transfer of an individual to another position applies only if the organisation subsequently makes a final decision not to permit the individual to resume the type of regulated work from which the individual was transferred.

(4)This section does not apply to personnel suppliers (see sections 4 and 5).

Commencement Information

I3S. 3(1)(2) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I4S. 3(1)(2) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

I5S. 3(3)(4) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

4Reference by employment agencyS

A personnel supplier which carries on an employment agency must give Ministers any prescribed information which it holds in relation to an individual who is or has been doing regulated work if it has, on the referral ground, decided—

(a)not to do any further business with the individual, or

(b)not to—

(i)find the individual further regulated work, or

(ii)offer or supply the individual for such work.

Commencement Information

I6S. 4 in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I7S. 4 in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

5Reference by employment businessS

A personnel supplier which carries on an employment business must give Ministers any prescribed information which it holds in relation to an individual whom it has offered or supplied for regulated work if—

(a)it has dismissed the individual on the referral ground,

(b)the individual has otherwise stopped doing regulated work in circumstances in which it would or might have dismissed the individual on the referral ground if the individual had not so stopped, or

(c)it has, on the referral ground, decided not to offer or supply the individual for further regulated work.

Commencement Information

I8S. 5 in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I9S. 5 in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

6Reference relating to matters occurring before provisions come into forceS

(1)The duties in sections 3 to 5 do not apply where the individual stopped doing the regulated work (or, as the case may be, the organisation's opinion was formed) before the date on which the provisions imposing the duties come into force.

(2)But an organisation may give Ministers any prescribed information which it holds in relation to such an individual if it wishes to do so.

Commencement Information

I10S. 6(1) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I11S. 6(2) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I12S. 6(2) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

7Reference by courtS

(1)Where a court convicts an individual of a relevant offence, it must give Ministers any prescribed information that it holds in relation to the convicted individual.

(2)Subsection (3) applies where a court—

(a)convicts an individual of an offence (other than a relevant offence), and

(b)is satisfied that it may be appropriate for the individual to be listed in the children's list or in the adults' list (or in both lists).

(3)Where this subsection applies, the court may give Ministers any prescribed information that the court holds in relation to the convicted individual.

(4)This section applies in relation to offences committed before and after this section comes into force.

Commencement Information

I13S. 7(1)(3) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I14S. 7(1)(3) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

I15S. 7(2)(4) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

8Reference by certain other personsS

(1)A person to whom this section applies may give Ministers any prescribed information that the person holds in relation to an individual who is or has been doing regulated work if—

(a)on the basis of information obtained by the person in the exercise of relevant functions, the person considers that the referral ground is met (regardless of whether the conduct to which the information relates occurred before or after this section comes into force), and

(b)prescribed information in relation to the individual has not been given to Ministers under sections 3 to 6 in respect of the conduct to which the information relates.

(2)This section applies to—

  • The General Teaching Council for Scotland

  • [F1 Healthcare Improvement Scotland ]

  • The Registrar of Chiropractors

  • The registrar of dentists and dental care professionals

  • The registrar of the General Medical Council

  • The registrar of the General Optical Council

  • The Registrar of health professionals

  • The Registrar of nurses and midwives

  • The Registrar of Osteopaths

  • [F2 The registrar of pharmacists ]

  • F3...

  • The Scottish Social Services Council

  • [F4 Social Care and Social Work Improvement Scotland ]

  • Any other person specified in an order made by Ministers

(3)For the purposes of this section, “relevant functions” means—

(a)in relation to the General Teaching Council for Scotland, such functions as are conferred on it by virtue of the [F5Public Services Reform (General Teaching Council for Scotland) Order 2011],

[F6( aa )in relation to Healthcare Improvement Scotland, such functions as are conferred on it by virtue of the National Health Service (Scotland) Act 1978 (c. 29) and any other enactment,]

(b)in relation to registrars mentioned in subsection (2), such functions as are conferred on them by virtue of any enactment,

(c)in relation to F7... the Scottish Social Services Council, such functions as are conferred on [F8 it ] by virtue of the 2001 Act and any other enactment, F9...

[F10(ca)in relation to Social Care and Social Work Improvement Scotland, such functions as are conferred on it by virtue of the 2010 Act and any other enactment, and]

(d)in relation to a person specified in an order made under subsection (2), such functions as are specified by the order.

Textual Amendments

F1Words in s. 8(2) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(a)(i); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F3S. 8(2) entry repealed (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(a)(i); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F4Words in s. 8(2) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(a)(ii); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F6S. 8(3)(aa) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(a)(ii); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F7Words in s. 8(3)(c) repealed (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(b)(i); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F8Word in s. 8(3)(c) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(b)(ii); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F9Word in s. 8(3) repealed (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(b)(iii); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F10S. 8(3)(ca) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 28(b)(iv); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

Commencement Information

I16S. 8(1)(2) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I17S. 8(1)(2) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

I18S. 8(3)(a)-(c) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I19S. 8(3)(d) in force at 12.10.2010 by S.S.I. 2010/344, art. 2(a)(i)

9Failure to refer: offenceS

An organisation which fails, without reasonable excuse, to comply with a duty imposed by any of sections 3 to 5 within 3 months of the date on which the duty arose is guilty of an offence and liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both,

(b)on a conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both.

Commencement Information

I20S. 9 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Consideration whether to listS

10Consideration whether to list: organisational referrals etc.S

(1)This section applies

(a)[F11where—]

[F12(i)]prescribed information relating to an individual has been given to Ministers in pursuance of sections 3 to 6 or 8, and

[F12(ii)]they are satisfied that the information was not given for vexatious or frivolous purposes

[F13, or

(b)where information relating to an individual has been given to Ministers by the Independent Safeguarding Authority]

(2)Where Ministers are satisfied that the information indicates that it may be appropriate for the individual to be included in the children's list, they must consider listing the individual in that list.

(3)Where Ministers are satisfied that the information indicates that it may be appropriate for the individual to be included in the adults' list, they must consider listing the individual in that list.

(4)For the avoidance of doubt, subsections (2) and (3) apply in relation to an individual regardless of the type of regulated work [F14(if any)] which the individual is or has been doing.

Textual Amendments

F11Words in s. 10(1)(a) renumbered as s. 10(1)(a) (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)), arts. 1(2), 4(2)(a)

F12S. 10(1)(a)(i)(ii): s. 10(1)(a)(b) renumbered as s. 10(1)(a)(i)(ii) (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 4(2)(a)

F13S. 10(1)(b) and word inserted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 4(2)(b)

F14Words in s. 10(4) inserted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 4(3)

Commencement Information

I21S. 10 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

11Consideration whether to list: court referralsS

(1)This section applies where prescribed information relating to an individual has been given to Ministers in pursuance of section 7.

(2)Where the individual has been convicted of a relevant offence, Ministers must consider listing the individual in the children's list.

(3)In any other case, Ministers must consider listing the individual in the children's list where they are satisfied that—

(a)the information indicates that it may be appropriate for the individual to be included in that list, and

(b)the individual does, has done or is likely to do regulated work with children.

(4)Ministers must consider listing the individual in the adults' list where they are satisfied that—

(a)the information indicates that it may be appropriate for the individual to be included in that list, and

(b)the individual does, has done or is likely to do regulated work with adults.

Commencement Information

I22S. 11 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

12Consideration whether to list: vetting information etc.S

(1)Ministers must consider listing an individual in the children's list if they are satisfied that—

(a)either—

(i)vetting information about the individual, or

(ii)information received when considering whether to list the individual in the adults' list,

indicates that it may be appropriate for the individual to be included in the children's list, and

(b)the individual does, has done or is likely to do regulated work with children.

(2)Ministers must consider listing an individual in the adults' list if they are satisfied that—

(a)either—

(i)vetting information about the individual, or

(ii)information received when considering whether to list the individual in the children's list,

indicates that it may be appropriate for the individual to be included in the adults' list, and

(b)the individual does, has done or is likely to do regulated work with adults.

Commencement Information

I23S. 12 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

13Consideration whether to list: inquiriesS

(1)This section applies where—

(a)a relevant inquiry report names an individual who is or has been doing regulated work, and

(b)it appears to Ministers from the report that the person who held the inquiry found that the referral ground was met at a time when the individual was doing regulated work (whether that time was before or after this section comes into force).

(2)Where it appears to Ministers from the report that it may be appropriate for the individual to be included in the children's list, they may consider listing the individual in the children's list.

(3)Where it appears to Ministers from the report that it may be appropriate for the individual to be included in the adults' list, they may consider listing the individual in the adults' list.

(4)For the avoidance of doubt, subsections (2) and (3) apply in relation to an individual regardless of the type of regulated work which the individual was doing.

Modifications etc. (not altering text)

Commencement Information

I24S. 13 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Inclusion in listS

14Automatic listingS

(1)Ministers must list an individual in the children's list where it appears to them that any of the criteria specified for the purposes of this subsection is satisfied in relation to the individual.

(2)Ministers must list an individual in the adults' list where it appears to them that any of the criteria specified for the purposes of this subsection is satisfied in relation to the individual.

(3)It is for Ministers to specify by order criteria for the purposes of subsections (1) and (2).

(4)Criteria which may be so specified include—

(a)that an individual has been convicted of, or cautioned in relation to, an offence of a specified description, including offences under—

(i)the law of England, Wales, Northern Ireland, the Channel Islands or the Isle of Man,

(ii)section 70 of the Army Act 1955 (c. 18),

(iii)section 70 of the Air Force Act 1955 (c. 19),

(iv)section 42 of the Naval Discipline Act 1957 (c. 53),

(v)section 42 of the Armed Forces Act 2006 (c. 52),

(b)that an order of a specified description imposing requirements about an individual's conduct has been made.

Commencement Information

I25S. 14(1)(2) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I26S. 14(3)(4) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I27S. 14(3)(4) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

15Inclusion in children's list after considerationS

Ministers must list an individual in the children's list if, after considering whether to do so, they are satisfied by information relating to the individual's conduct that the individual is unsuitable to work with children.

Commencement Information

I28S. 15 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

16Inclusion in adults' list after considerationS

Ministers must list an individual in the adults' list if, after considering whether to do so, they are satisfied by information relating to the individual's conduct that the individual is unsuitable to work with protected adults.

Commencement Information

I29S. 16 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Information relevant to listing decisionsS

17Information relevant to listing decisionsS

(1)Ministers must, before making a decision under section 15 or 16—

(a)give the individual whom they are considering whether to list an opportunity to make representations as to why the individual should not be listed, and

(b)consider any such representations.

(2)Ministers may, when deciding whether to list an individual, also consider—

(a)any information which caused them to consider listing the individual,

(b)any information relating to the individual which they obtain—

(i)in pursuance of a requirement made under any of sections 18 to 20, or

(ii)by performing their functions in relation to the Scheme, and

(c)any other information which they think relevant.

(3)An individual who is given an opportunity to make representations under subsection (1) must be given the opportunity to make representations in relation to all of the information on which Ministers intend to rely in deciding whether to list the individual.

(4)The opportunity to make representations under subsection (1) does not include the opportunity to make representations that any relevant finding of fact was wrongly made.

(5)A relevant finding of fact is a finding of fact—

(a)made in legal proceedings,

(b)made in a relevant inquiry report (other than a report relating to an inquiry of the type mentioned in sub-paragraph (ii) of section 31(2)(a)),

(c)made in proceedings before one of the following bodies or any of its committees—

(i)the Council of the Pharmaceutical Society of Great Britain,

(ii)the General Chiropractic Council,

(iii)the General Dental Council,

(iv)the General Medical Council,

(v)the General Optical Council,

(vi)the General Osteopathic Council,

(vii)the General Teaching Council for Scotland,

(viii)[F15 the Health and Care Professions Council ],

(ix)the Nursing and Midwifery Council,

F16(x). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(xi)the Scottish Social Services Council, F17...

[F18(xii)Social Care and Social Work Improvement Scotland, or]

(d)made by any other person, or in any other circumstance, specified by order made by Ministers.

(6)Subsections (1) and (3) do not apply if Ministers do not know and cannot reasonably ascertain the individual's whereabouts.

Textual Amendments

F16S. 17(5)(c)(x) repealed (1.10.2010 for specified purposes) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 29(a); S.S.I. 2010/321, art. 3, Sch.

F17Word in s. 17(5)(c) repealed (1.10.2010 for specified purposes) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 29(b); S.S.I. 2010/321, art. 3, Sch.

F18S. 17(5)(c)(xii) added (1.10.2010 for specified purposes) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 29(c); S.S.I. 2010/321, art. 3, Sch.

Commencement Information

I30S. 17(1)-(4)(5)(a)-(c)(6) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I31S. 17(5)(d) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I32S. 17(5)(d) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

18Police information etc.S

(1)Ministers may, for the purpose of enabling or assisting them to decide whether to list an individual, require the chief constable F19... to provide them with any information relating to the individual which the chief constable F20... thinks might be relevant in relation to the type of regulated work concerned.

(2)[F21The chief constable] must not provide information to Ministers under subsection (1) if the [F22 chief constable ] thinks that disclosing it to the individual to whom it relates would be contrary to the interests of the prevention or detection of crime.

(3)Ministers must pay the [F23 Scottish Police Authority ] such fee as Ministers think appropriate for information provided under subsection (1).

(4)Ministers may, for the purpose of enabling or assisting them to decide whether to list an individual, require—

(a)any person who holds records of convictions, cautions or other information for the use of police forces generally to provide them with any information relating to the individual which the record holder thinks might be relevant in relation to the type of regulated work concerned,

(b)any person who holds such records to provide them with the information referred to in section 113A(3)(a) of the 1997 Act (prescribed details of every relevant matter relating to the individual which is recorded in central records).

Textual Amendments

F19Words in s. 18(1) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(2)(a)(i); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F20Words in s. 18(1) repealed (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(2)(a)(ii); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F21Words in s. 18(2) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(2)(b)(i); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F22Words in s. 18(2) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(2)(b)(ii); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F23Words in s. 18(3) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(2)(c); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Commencement Information

I33S. 18 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

19Information held by public bodies etc.S

(1)Ministers may, for the purpose of enabling or assisting Ministers to decide whether to list an individual, require—

(a)any person who holds vetting information of a type prescribed under section 49(1)(d) to provide them with any such vetting information relating to the individual,

(b)any of the persons set out in subsection (3) to provide them with any information held by the person which Ministers think might be relevant.

(2)Information provided under subsection (1)(b) may, in particular, be information which relates to—

(a)the regulated work concerned, or

(b)the protection of children or protected adults in general, or of any child or protected adult in particular.

(3)The persons who may be required to provide information under subsection (1)(b) are—

  • Councils

  • The General Teaching Council for Scotland

  • Health Boards and Special Health Boards

  • [F24 Healthcare Improvement Scotland ]

  • Her Majesty's Chief Inspector of Prisons for Scotland

  • Her Majesty's Inspectors of Schools

  • The Registrar of Chiropractors

  • The registrar of dentists and dental care professionals

  • The registrar of the General Medical Council

  • The registrar of the General Optical Council

  • The Registrar of health professionals

  • The Registrar of Independent Schools in Scotland

  • The Registrar of nurses and midwives

  • The Registrar of Osteopaths

  • [F25 The registrar of pharmacists ]

  • F26...

  • The Scottish Social Services Council

  • [F27 Social Care and Social Work Improvement Scotland ]

  • F28...

  • Any other person specified in an order made by Ministers

Textual Amendments

F24Words in s. 19(3) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(b); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F26S. 19(3) entry repealed (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 30(a); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F27Words in s. 19(3) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 30(b); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

Commencement Information

I34S. 19(1)(2) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I35S. 19(3) in force at 12.10.2010 by S.S.I. 2010/344, art. 2(a)(ii)

20Information held by regulated work providersS

(1)Ministers may require a person falling within subsection (2) to provide them with any information held by the person which Ministers think might be relevant for the purpose of enabling or assisting them to decide whether to list an individual.

(2)A person falls within this subsection if—

(a)the individual is doing, or has done, regulated work for the person,

(b)the individual has been offered regulated work by the person (whether or not the individual subsequently did the work),

(c)it is an employment agency which has offered or supplied, or made arrangements with a view to offering or supplying, the individual to another person for regulated work (whether or not the arrangements are still in place), or

(d)it is an employment business which employs or has employed the individual to do regulated work for another person.

(3)A person who fails, without reasonable excuse, to comply with a requirement made under subsection (1) is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

Commencement Information

I36S. 20 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Appeals against listingS

21Appeals against inclusion in children's listS

(1)An individual listed under section 15 may appeal to the sheriff against Ministers' decision to list the individual in the children's list.

(2)Such an appeal must be lodged—

(a)within 3 months of the date on which the individual was listed, or

(b)by such later date as the sheriff may, on cause shown, allow.

(3)The sheriff must determine an appeal under subsection (1)—

(a)where the sheriff is satisfied by information relating to the individual's conduct that the individual is unsuitable to work with children, by confirming Ministers' decision to list the individual in the children's list, or

(b)where the sheriff is not so satisfied, by directing Ministers to remove the individual from the children's list.

Commencement Information

I37S. 21 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

22Appeals against inclusion in adults' listS

(1)An individual listed under section 16 may appeal to the sheriff against Ministers' decision to list the individual in the adults' list.

(2)Such an appeal must be lodged—

(a)within 3 months of the date on which the individual was listed, or

(b)by such later date as the sheriff may, on cause shown, allow.

(3)The sheriff must determine an appeal under subsection (1)—

(a)where the sheriff is satisfied by information relating to the individual's conduct that the individual is unsuitable to work with protected adults, by confirming Ministers' decision to list the individual in the adults' list, or

(b)where the sheriff is not so satisfied, by directing Ministers to remove the individual from the adults' list.

Commencement Information

I38S. 22 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

23Further appeals in relation to inclusion in either listS

(1)The sheriff's determination under section 21 or 22 may be appealed to the sheriff principal by—

(a)the individual, or

(b)Ministers.

(2)The sheriff principal's determination of an appeal under subsection (1) may, with the leave of the sheriff principal, be appealed to the Inner House of the Court of Session on a point of law by—

(a)the individual, or

(b)Ministers.

(3)The decision of—

(a)the sheriff principal, or

(b)if leave is granted to appeal to the Inner House, that House,

on any appeal is final.

Commencement Information

I39S. 23 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

24Appeals in relation to listing: supplementaryS

(1)No finding of fact on which any conviction is based may be challenged on an appeal under section 21, 22 or 23.

(2)Any court proceedings under section 21, 22 or 23 may take place in private if the court considers it appropriate in all the circumstances.

Commencement Information

I40S. 24 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Removal from listS

25Application for removal from listS

(1)A listed individual may apply to Ministers for removal from—

(a)the children's list, or

(b)the adults' list.

(2)References in this section to “the list” are to be read as references to the list from which the individual has applied for removal.

(3)An application for removal from the list is competent only if—

(a)it is made after the end of such period as may be prescribed (beginning on such date as may be prescribed), or

(b)Ministers are satisfied that the applicant's circumstances have changed since the applicant—

(i)was listed, or

(ii)last made an application for removal from the list under this section,

such that Ministers should consider the application.

(4)A period may not be prescribed under subsection (3)(a) in relation to a particular individual.

(5)An applicant's circumstances are to be treated as having changed if—

(a)the applicant was convicted of an offence in relation to conduct which Ministers had regard to when considering whether to list the applicant, and

(b)the conviction is subsequently quashed.

(6)Subsection (5) does not affect the generality of subsection (3)(b).

Commencement Information

I42S. 25(3)(a) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I43S. 25(3)(a) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

26Determination of application for removal from listS

(1)Ministers must determine a competent application for removal from the children's list—

(a)where they are satisfied that the applicant is no longer unsuitable to work with children, by removing the individual from the list, or

(b)where they are not so satisfied, by refusing the application.

(2)Ministers must determine a competent application for removal from the adults' list—

(a)where they are satisfied that the applicant is no longer unsuitable to work with protected adults, by removing the individual from the list, or

(b)where they are not so satisfied, by refusing the application.

(3)Sections 18 to 20 apply to Ministers' determination of an application for removal from the list as they apply to a decision whether to list an individual (with references to deciding whether to list an individual being read as references to determining whether to remove an individual from the list).

Commencement Information

I44S. 26 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

27Appeals against refusal to remove individual from listS

(1)An individual may appeal to the sheriff against Ministers' decision to refuse an application for removal from the list under section 26.

(2)The sheriff must determine an appeal under subsection (1) in relation to removal from the children's list—

(a)where the sheriff is satisfied that the applicant is no longer unsuitable to work with children, by directing Ministers to remove the individual from the list, or

(b)where the sheriff is not so satisfied, by refusing the application.

(3)The sheriff must determine an appeal under subsection (1) in relation to removal from the adults' list—

(a)where the sheriff is satisfied that the applicant is no longer unsuitable to work with protected adults, by directing Ministers to remove the individual from the list, or

(b)where the sheriff is not so satisfied, by refusing the application.

(4)The sheriff's determination may be appealed to the sheriff principal by—

(a)the individual, or

(b)Ministers.

(5)The sheriff principal's determination of an appeal under subsection (4) may, with the leave of the sheriff principal, be appealed to the Inner House of the Court of Session on a point of law by—

(a)the individual, or

(b)Ministers.

(6)The Inner House may, in determining an appeal under subsection (5), by order modify the period prescribed for the purposes of section 25(3) in so far as that period is to apply to any further application by the individual concerned for removal from the children's list or, as the case may be, the adults' list.

(7)The decision of—

(a)the sheriff principal, or

(b)if leave is granted to appeal to the Inner House, that House,

on any appeal is final.

(8)Any court proceedings under this section may take place in private if the court considers it appropriate in all the circumstances.

Commencement Information

I45S. 27 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

28Late representationsS

(1)This section applies where an individual listed under section 15 or 16—

(a)was not, because of section 17(6), given an opportunity to make representations as to why the individual should not be listed, and

(b)subsequently makes representations to Ministers as to why the individual should not have been listed.

(2)Where this section applies, Ministers must—

(a)consider the individual's representations, and

(b)if satisfied that the individual should not have been listed, remove the individual from the list.

Commencement Information

I46S. 28 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

29Removal from listS

(1)Ministers—

(a)must remove an individual from the children's list or adults' list—

(i)if directed to do so by the court, or

(ii)where section 26 or 28 requires them to do so, and

(b)may, at any other time, remove an individual from the children's list or adults' list if they are satisfied that the individual should not have been listed.

(2)Where Ministers appeal against a direction to remove an individual from the children's list or adults' list, the duty imposed by subsection (1)(a) does not apply until that appeal is finally determined.

Commencement Information

I47S. 29 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Listing: supplementaryS

30Notice of listing etc.S

(1)Subsection (2) applies where—

(a)an individual has been listed under section 14, 15 or 16,

(b)Ministers become aware that an individual has otherwise been barred from doing regulated work with children or adults, or

(c)Ministers are considering whether to list an individual by virtue of sections 10 to 13.

(2)Where this subsection applies, Ministers must notify the persons specified in subsection (3) of the fact—

(a)that the individual has been barred from doing regulated work with children or adults, or, as the case may be

(b)that they are considering whether to list the individual.

(3)Those persons are—

(a)the individual concerned,

(b)where—

(i)the individual has been barred from regulated work with children, or

(ii)Ministers are considering whether to list the individual in the children's list,

any organisation for which they know the individual is doing regulated work with children,

(c)where—

(i)the individual has been barred from regulated work with adults, or

(ii)Ministers are considering whether to list the individual in the adults' list,

any organisation for which they know the individual is doing regulated work with adults, and

(d)any relevant regulatory body whom Ministers think it would be appropriate to notify of that fact.

(4)Where, after considering whether to list an individual, Ministers decide not to do so, they must give notice of that fact to—

(a)the individual,

(b)where Ministers have decided not to include the individual in the children's list, any organisation for which they know the individual is doing regulated work with children,

(c)where Ministers have decided not to include the individual in the adults' list, any organisation for which they know the individual is doing regulated work with adults, and

(d)any relevant regulatory body to whom Ministers gave notice under subsection (2) of the fact that they were considering whether to list the individual.

(5)A notice given under subsection (2) or (4) may include—

(a)such details as Ministers think appropriate—

(i)where the individual has been barred (by being listed or otherwise), about the circumstances in which the individual was barred,

(ii)where they have decided not to list an individual, about the circumstances in which the individual was considered for listing, and

(b)any other information about the individual which Ministers think appropriate.

(6)Where Ministers remove an individual from a list under section 29, they must give notice of that fact to—

(a)the individual, and

(b)any relevant regulatory body whom they think it would be appropriate to notify of that fact (having regard to the period for which the individual has been listed).

(7)The following persons are “relevant regulatory bodies”—

  • The General Teaching Council for Scotland

  • [F29 Healthcare Improvement Scotland ]

  • F30...

  • The Scottish Social Services Council

  • [F31 Social Care and Social Work Improvement Scotland ]

  • Any other person specified in an order made by Ministers

(8)A notice which this section requires to be given to an individual may be given—

(a)by delivering it to the individual,

(b)by leaving it at the individual's usual or last known place of abode, or

(c)by sending it by post to the individual at that place.

Textual Amendments

F29Words in s. 30(7) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(c); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F30S. 30(7) entry repealed (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 31(a); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F31Words in s. 30(7) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 31(b); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

Modifications etc. (not altering text)

Commencement Information

I48S. 30 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

[F3230A. Notification of health regulatory bodies etc. S

(1)Where section 30(2) applies, Ministers must notify any relevant health regulatory body whom they think it would be appropriate to notify of the fact—

(a)that the individual has been barred from doing regulated work with children or adults, or, as the case may be,

(b)that they are considering whether to list the individual.

(2)Where, after considering whether to list an individual, Ministers decide not to do so, they must give notice of that fact to any relevant health regulatory body to whom they gave notice under subsection (1)(b).

(3)A notice given under subsection (1) or (2) may include—

(a)such details as Ministers think appropriate—

(i)where the individual has been barred (by being listed or otherwise), about the circumstances in which the individual was barred,

(ii)where they have decided not to list an individual, about the circumstances in which the individual was considered for listing, and

(b)any other information about the individual which Ministers think appropriate.

(4)Where Ministers remove an individual from a list under section 29, they must give notice of that fact to any relevant health regulatory body whom they think it would be appropriate to notify of that fact (having regard to the period for which the individual has been listed).

(5)The following are “relevant health regulatory bodies”—

  • the General Chiropractic Council

  • the General Dental Council

  • the General Medical Council

  • the General Optical Council

  • the General Osteopathic Council

  • [F33the Health and Care Professions Council]

  • the Nursing and Midwifery Council

  • the Pharmaceutical Society of Northern Ireland

  • the Royal Pharmaceutical Society of Great Britain.]

[F34(6)The reference in subsection (5) to the Health and Care Professions Council does not include a reference to that body in so far as it has functions relating to the social work profession in England or social care workers in England (each of those expressions having the same meaning as in section 60 of the Health Act 1999).]

31Relevant inquiriesS

(1)This section applies for the purposes of section 13 and 17.

(2)A relevant inquiry is any of the following—

(a)an inquiry held—

(i)by Ministers,

(ii)by the Scottish Parliament (including an inquiry held by a committee or sub-committee of the Parliament),

(b)an inquiry held under the Inquiries Act 2005 (c. 12),

(c)any other inquiry or hearing designated for the purposes of this section by an order made by Ministers.

(3)Relevant inquiry report” means the report by the person who held the relevant inquiry.

Commencement Information

I49S. 31 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

32Relevant offences etc.S

(1)For the purposes of this Part an individual commits a relevant offence if the individual—

(a)commits an offence which falls within paragraph 1 of schedule 1, or

(b)falls within paragraph 2 of that schedule,

and references to being convicted of, or charged with, a relevant offence are to be construed accordingly.

(2)Ministers may by order modify schedule 1 so as to modify the circumstances in which an individual is to be treated for the purposes of this Part as having committed a relevant offence.

(3)Subsection (4) applies to an individual if—

(a)the individual is charged with an offence,

(b)either—

(i)the individual is acquitted of the charge [F35 by reason of the special defence set out in section 51A of the 1995 Act ], or

(ii)the court makes a finding under section 55(2) of the 1995 Act in respect of the individual, and

(c)the court makes any order mentioned in section 57(2)(a) to (d) of the 1995 Act in relation to the acquittal or finding.

(4)An individual to whom this subsection applies is to be treated, for the purposes of sections 7, 17 and 24, as having been convicted of the offence.

Textual Amendments

F35Words in s. 32(3)(b)(i) substituted (with application in accordance with art. 3 of the commencing S.S.I.) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), Sch. 7 para. 84; S.S.I. 2012/160, art. 3, Sch.

Commencement Information

I50S. 32(1)(3)(4) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I51S. 32(2) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I52S. 32(2) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

33Duty to notify certain changesS

(1)An individual who is listed, or whom Ministers are considering whether to list, must give Ministers notice of—

(a)a change in the individual's name or address,

(b)the issue of a full gender recognition certificate to the individual under section 4 of the Gender Recognition Act 2004 (c. 7), or

(c)any other change in circumstance of a prescribed type.

(2)A notice under subsection (1) must be given within 1 month of the date of the change or issue of the certificate to which it relates.

(3)An individual who fails, without reasonable excuse, to comply with subsection (1) commits an offence.

(4)An individual guilty of an offence under subsection (3) is liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding level 5 on the standard scale, or to both.

Commencement Information

I53S. 33 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Offences relating to regulated workS

34Barred individuals not to do regulated workS

(1)It is an offence for an individual to do, or to seek or agree to do, any regulated work from which the individual is barred.

(2)It is a defence for an individual charged with an offence under subsection (1) to prove that the individual did not know, and could not reasonably be expected to have known—

(a)that the individual was barred from that regulated work, or

(b)that the work concerned was regulated work.

Commencement Information

I54S. 34 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

35Organisations not to use barred individuals for regulated workS

(1)It is an offence for an organisation to offer regulated work to an individual barred from that work.

(2)Ministers may, by regulations, prohibit an organisation from permitting an individual to do, or require an organisation to remove an individual from, regulated work from which the individual is barred.

(3)Regulations may in particular—

(a)impose prohibitions or requirements—

(i)in relation to particular types of organisations only,

(ii)in relation to particular kinds of regulated work only, or

(b)otherwise limit the purpose for which the prohibition or requirement is to apply (or the area in which it is to apply) in such manner as Ministers think appropriate.

(4)An organisation which fails to comply with regulations made under subsection (2) commits an offence.

(5)An organisation commits an offence under subsection (1) if it offers regulated work to a barred individual who is already working for the organisation.

(6)It is a defence for an organisation charged with an offence under subsection (1) or (4) to prove that it did not know, and could not reasonably be expected to have known, that the individual was barred from doing that regulated work.

(7)For the purposes of subsection (1), an organisation is not to be treated as having offered regulated work to an individual if the offer is subject to the organisation being satisfied (by virtue of information disclosed under Part 2 or otherwise) that the individual is suitable to do that work.

Commencement Information

I55S. 35(1) s. 35(4)-(7) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I56S. 35(2)(3) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I57S. 35(2)(3) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

36Personnel suppliers not to supply barred individuals for regulated workS

(1)A personnel supplier commits an offence if it—

(a)offers or supplies an individual who is barred from doing regulated work to an organisation, and

(b)knows or has reason to believe that the organisation will make arrangements for the individual to do regulated work from which the individual is barred.

(2)It is a defence for a personnel supplier charged with an offence under subsection (1) to prove that it did not know, and could not reasonably be expected to have known, that the individual was barred from doing the regulated work.

Commencement Information

I58S. 36 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

37Penalties for offences relating to regulated workS

A person guilty of an offence under section 34, 35 or 36 is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both,

(b)on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or to both.

Commencement Information

I59S. 37 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

General and supplementaryS

38Police access to listsS

(1)Ministers must make available to [F36the chief constable]

(a)the name of each individual included in the children's list,

(b)the name of each individual included in the adults' list, and

(c)any other information contained in those lists which Ministers consider should be disclosed for any purpose mentioned in subsection (2).

(2)Information disclosed under subsection (1) may be used by [F37constables of the Police Service of Scotland] only for the purpose of—

(a)the prevention or detection of crime, or

(b)the apprehension or prosecution of offenders.

Textual Amendments

F36Words in s. 38(1) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(3)(a); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F37Words in s. 38(2) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(3)(b); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Commencement Information

I60S. 38 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

39Restrictions on listing in children's listS

(1)Ministers need not list an individual (nor consider an individual for listing) in the children's list if the individual is already barred from regulated work with children F38...

(2)Ministers need not consider an individual for listing in the children's list if—

(a)they consider that it would be more appropriate for the individual's case to be [F39 dealt with ] by the [F40Independent Safeguarding Authority] (“[F40ISA]”), or

(b)subsection (3) applies.

(3)This subsection applies where—

[F41(a)the individual’s case has been dealt with in pursuance of relevant corresponding legislation, and]

(b)Ministers are satisfied that all information relating to the individual which they consider relevant to their decision whether to consider to list the individual was considered [F42 before, or when, the individual’s case was last dealt with in pursuance of the relevant corresponding legislation ].

(4)Where—

(a)in pursuance of subsection (2)(a), Ministers do not consider an individual for listing in the children's list, and

(b)[F40ISA] [F43deals with] the individual's case,

section 30 applies (with any necessary modifications) as if Ministers are considering to list the individual in the children's list.

(5)Ministers need not list an individual in the children's list under section 14 if [F44they consider that it would be more appropriate for the individual’s case to be dealt with by ISA.]

F45(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F45(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F46(6)Where—

(a)in pursuance of subsection (5), Ministers do not list an individual in the children’s list under section 14, and

(b)ISA deals with the individual’s case,

section 30 applies (with any necessary modifications) as if Ministers had listed the individual in the children’s list under section 14.

(7)In this section “relevant corresponding legislation” means—

(a) the Protection of Children Act 1999 (c.14) ,

(b) the Criminal Justice and Court Services Act 2000 (c.43) ,

(c) sections 142 to 144 of the Education Act 2002 (c.32) ,

(d)the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003,

(e) the Safeguarding Vulnerable Groups Act 2006 (c.47) ,

(f) regulations made under Article   70(1) and (2)(e) or 88A(1) and (2)(b) of the Education and Libraries (Northern Ireland) Order 1986,

(g)the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.]

Textual Amendments

F38Words in s. 39(1) repealed (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 7(2)

F39Words in s. 39(2)(a) substituted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 7(3)

F40Words in s. 39 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(n), 116(5)(a)

F41S. 39(3)(a) substituted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 7(4)(a)

F42Words in s. 39(3)(b) substituted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 7(4)(b)

F43Words in s. 39(4)(b) substituted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 7(5)

F44Words in s. 39(5) inserted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 7(6)(a)

F45S. 39(5)(a)(b) repealed (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 7(6)(b)

F46S. 39(6)(7) inserted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 7(7)

Commencement Information

I61S. 39 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

40Restrictions on listing in adults' listS

(1)Ministers need not list an individual (nor consider an individual for listing) in the adults' list if the individual is already barred from regulated work with adults F47...

(2)Ministers need not consider an individual for listing in the adults' list if—

(a)they consider that it would be more appropriate for the individual's case to be [F48 dealt with ] by the [F49 Independent Safeguarding Authority ] (“[F49 ISA ]”), or

(b)subsection (3) applies.

(3)This subsection applies where—

[F50(a) the individual’s case has been dealt with in pursuance of relevant corresponding legislation, and ]

(b)Ministers are satisfied that all information relating to the individual which they consider relevant to their decision whether to consider to list the individual was considered [F51before, or when, the individual’s case was last dealt with in pursuance of the relevant corresponding legislation].

(4)Where—

(a)in pursuance of subsection (2)(a), Ministers do not consider an individual for listing in the adults' list, and

(b)[F49ISA] [F52 deals with ] the individual's case,

section 30 applies (with any necessary modifications) as if Ministers are considering to list the individual in the adults' list.

(5)Ministers need not list an individual in the adults' list under section 14 if [F53 they consider that it would be more appropriate for the individual’s case to be dealt with by ISA.]

F54(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F54(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F55(6)Where—

(a)in pursuance of subsection (5), Ministers do not list an individual in the adults’ list under section 14, and

(b)ISA deals with the individual’s case,

section 30 applies (with any necessary modifications) as if Ministers had listed the individual in the adults’ list under section 14.

(7)In this section “relevant corresponding legislation” means—

(a) Part 7 of the Care Standards Act 2000 (c.14) ,

(b)the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003,

(c) the Safeguarding Vulnerable Groups Act 2006 (c.47) ,

(d)the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.]

Textual Amendments

F47Words in s. 40(1) repealed (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 8(2)

F48Words in s. 40(2)(a) substituted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 8(3)

F49Words in s. 40 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(n), 116(5)(a)

F50S. 40(3)(a) substituted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 8(4)(a)

F51Words in s. 40(3)(b) substituted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 8(4)(b)

F52Words in s. 40(4)(b) substituted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 8(5)

F53Words in s. 40(5) inserted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 8(6)(a)

F54S. 40(5)(a)(b) repealed (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 8(6)(b)

F55S. 40(6)(7) inserted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 8(7)

Commencement Information

I62S. 40 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

41Protection from actions for damagesS

(1)No proceedings are competent in respect of any loss or damage incurred by any person because of—

(a)the fact that an individual is or is not listed,

(b)the fact that Ministers have or have not considered whether to list an individual,

(c)the provision of information in pursuance of any of sections 3 to 8 and 18 to 20 [F56(or of any other power or duty to provide information to Ministers in relation to their functions under this Part)].

(2)Subsection (1)(c) does not apply if the provider of the information—

(a)knew, or was reckless as to whether, it was untrue or misleading in a material respect, and

(b)provided it—

(i)in purported compliance with any of sections 3 to 8 and 18 to 20[F57(or of any other power or duty to provide information to Ministers in relation to their functions under this Part)], or

(ii)in other circumstances in which the provider knew, or could reasonably be expected to have known, that it would be used by Ministers, or provided to them for use, in connection with the performance of their functions under this Part.

Textual Amendments

F56Words in s. 41(1)(c) inserted (18.4.2010 coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 9

Commencement Information

I63S. 41 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

42Power to regulate procedure etc.S

(1)Ministers may, by regulations, make further provision about—

(a)the information about listed individuals which is to be included in the children's list and adults' list,

(b)the maintenance of those lists, and

(c)the procedure which is to be followed in relation to any decision which Ministers are authorised or required to take under this Part.

(2)The regulations may, in particular, make provision in relation to the time within which anything has to be done.

Commencement Information

I64S. 42(1)(a)(b) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I65S. 42(1)(c)(2) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I66S. 42(1)(c)(2) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

43Transfer from 2003 Act listS

(1)Ministers must list in the children's list each individual who was included (otherwise than provisionally) in the list kept under section 1 of the Protection of Children (Scotland) Act 2003 (asp 5) (“the 2003 Act”) immediately before that section was repealed.

(2)Ministers must give notice of listing under subsection (1) to each individual listed under that subsection.

(3)An individual who is listed under subsection (1) is to be treated for the purposes of this Act as having been so listed—

(a)under the provision of this Part which most closely corresponds to the provision in the 2003 Act under which the individual was included in the list kept under section 1 of that Act, and

(b)on the day on which the individual was included in the list kept under section 1 of the 2003 Act.

(4)The provisions of this Part are accordingly to apply in relation to such an individual with any necessary modifications.

(5)Section 29(1)(b) is not to be read as requiring or authorising Ministers to remove such an individual from the children's list where it appears to them that the individual—

(a)would not have been listed under the provision of this Part which most closely corresponds to the provision in the 2003 Act under which the individual was included in the list kept under section 1 of the 2003 Act, but

(b)should have been included in the list kept under the 2003 Act under the provision of that Act which corresponds most closely with the provision of this Part under which the individual is to be treated as having been listed.

(6)A notice required by subsection (2) may be given—

(a)by delivering it to the listed individual,

(b)by leaving it at the listed individual's usual or last known place of abode, or

(c)by sending it by post to the listed individual at that place.

Commencement Information

I67S. 43 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Part 2 SVetting and disclosure

The SchemeS

44The SchemeS

Ministers are to administer a scheme (“the Scheme”) under which information about individuals who do, or wish to do, regulated work with children or protected adults is—

(a)collated, and

(b)disclosed,

in accordance with this Part.

Commencement Information

I68S. 44 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 4)

45Participation in SchemeS

(1)An individual may apply to Ministers to join the Scheme in relation to—

(a)regulated work with children,

(b)regulated work with adults, or

(c)both types of regulated work.

(2)Ministers must allow an individual to be a member of the Scheme (a “scheme member”) in relation to a type of regulated work if the individual is not barred from doing that work.

Commencement Information

I69S. 45 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

46Statement of scheme membershipS

(1)Ministers must disclose a statement of scheme membership to each scheme member.

(2)A statement of scheme membership is a document which—

(a)sets out the type of regulated work in relation to which an individual participates in the Scheme,

(b)confirms that the individual is not barred from doing that work,

(c)if Ministers are considering whether to list the individual in relation to that type of work, says so, and

(d)contains such other information about the individual as may be prescribed.

(3)Ministers need not comply with subsection (1) where—

(a)the individual makes a disclosure request at the same time as the individual applies to join the Scheme, and

F58(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Vetting informationS

47Enquiries about scheme membersS

(1)Ministers must, after making enquiries for the purpose of discovering whether any vetting information exists in relation to a new scheme member, create a scheme record for the member.

(2)Ministers must make arrangements for the purpose of discovering whether any new vetting information arises in relation to scheme members while those members participate in the Scheme.

(3)Ministers must update a scheme record if they discover any new vetting information about the scheme member to whom it relates.

(4)Vetting information is new if Ministers did not discover it as a result of earlier enquiries made in pursuance of subsection (1) or (2) in relation to the scheme member concerned (regardless of whether it existed when they made those earlier enquiries).

Commencement Information

I71S. 47 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

48Scheme recordS

A scheme record is a document comprising—

(a)a scheme member's statement of scheme membership, and

(b)vetting information about the scheme member which Ministers discover as a result of enquiries or arrangements made under section 47.

Commencement Information

I72S. 48 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

49Vetting informationS

(1)Vetting information, in relation to a scheme member, is—

(a)the information referred to in section 113A(3)(a) of the 1997 Act (prescribed details of every relevant matter relating to the scheme member which is recorded in central records),

(b)if the scheme member is subject to notification requirements under Part 2 of the Sexual Offences Act 2003 (c. 42), information about those requirements,

[F59(c)information which—

(i)the chief officer of a relevant police force reasonably believes to be relevant in relation to the type of regulated work in relation to which the scheme member participates in the Scheme, and

(ii)in the chief officer’s opinion, ought to be included in the scheme member’s scheme record, and]

(d)such other information as may be prescribed.

(2)Regulations prescribing information for the purposes of subsection (1)(d) may require persons holding information of the type prescribed to disclose it to Ministers for the purposes of this Act.

Textual Amendments

Commencement Information

I73S. 49(1)(a)-(c) (2) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I74S. 49(1)(d) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I75S. 49(1)(d) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

50Duty to notify certain changesS

(1)A scheme member must give Ministers notice of—

(a)a change in the member's name,

(b)the issue of a full gender recognition certificate to the member under section 4 of the Gender Recognition Act 2004 (c. 7), or

(c)any other change in circumstance of a prescribed type.

(2)A notice under subsection (1) must be given within 3 months of the date of the change or issue of the certificate to which it relates.

(3)An individual who fails, without reasonable excuse, to comply with subsection (1) commits an offence.

(4)An individual guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Commencement Information

I76S. 50 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

51Correction of inaccurate scheme recordS

(1)Ministers must correct a scheme record if they are satisfied (following a request by a scheme member for correction, notification under section 50 or otherwise) that any information included in it is inaccurate.

(2)After correcting an inaccurate scheme record, Ministers must disclose the corrected information to—

(a)the scheme member, and

(b)any organisation for which they know the scheme member is doing regulated work.

(3)Subsection (2) applies only if Ministers have previously disclosed the inaccurate information under this Part to the scheme member or, as the case may be, the organisation.

(4)A scheme member may, in particular, request a review of any information included in a scheme record by virtue of section 49(1)(c).

[F60(5)Ministers, on receiving such a request, must ask the chief officer of the relevant police force who provided that information to reconsider whether—

(a)the chief officer still reasonably believes that information to be relevant in relation to the type of regulated work in relation to which the scheme member participates in the Scheme, and

(b)in the chief officer’s opinion, that information still ought to be included in the scheme member’s scheme record.]

(6)Information which was considered accurate when included in a scheme record but which—

(a)is subsequently found to have always been inaccurate, or

(b)subsequently becomes inaccurate for any reason,

is to be regarded as being inaccurate information for the purposes of this section.

[F61(7)This section does not apply to vetting information included in a scheme record which could be the subject of an application under section 52A(2).]

[F6252ZAProcedure following correction of inaccurate scheme recordS

(1)This section applies where—

(a)on receiving a copy of a scheme record under section 52(3)(b) or (5), a scheme member requests that Ministers correct information included in the record,

(b)Ministers correct the information, and

(c)as a result of the correction, the scheme record includes vetting information about a conviction [F63which falls within subsection (4)] .

(2)Section 51(2) does not apply in relation to the corrected information.

(3)Ministers must treat the request for disclosure to which the copy of the scheme record relates as if—

(a)it has not yet been complied with, and

(b)it had been made on the day on which the information is corrected.]

[F64(4)A conviction falls within this subsection if it is—

(a)a conviction for an offence listed in schedule 8A of the 1997 Act which is a spent conviction and either—

(i)the person was aged under 18 on the date of conviction and at least 7 years and 6 months have passed since the date of conviction, or

(ii)the person was aged 18 or over on the date of conviction and at least 15 years have passed since the date of conviction,

(b)a conviction for an offence listed in schedule 8B of the 1997 Act which is—

(i)a spent conviction, but

(ii)not a protected conviction.]

DisclosureS

[F6552Disclosure of scheme recordsS

(1)This section applies in relation to a scheme member’s scheme record if—

(a)disclosure conditions A to D are satisfied, and

(b)section 53 does not require Ministers to disclose the scheme member’s short scheme record.

(2) Subsection (3) applies where the scheme record does not include vetting information about a conviction [F66which falls within subsection (2A)].

[F67(2A)A conviction falls within this subsection if it is—

(a)a conviction for an offence listed in schedule 8A of the 1997 Act which is a spent conviction and either—

(i)the person was aged under 18 on the date of conviction and at least 7 years and 6 months have passed since the date of conviction, or

(ii)the person was aged 18 or over on the date of conviction and at least 15 years have passed since the date of conviction,

(b)a conviction for an offence listed in schedule 8B of the 1997 Act which is—

(i)a spent conviction, but

(ii)not a protected conviction.]

(3)Ministers must—

(a)disclose the scheme record, and

(b)send a copy of the scheme record to the scheme member.

(4) Subsections (5) to (9) apply where the scheme record includes vetting information about a conviction [F68which falls within subsection (2A).]

(5)Ministers must send a copy of the scheme record to the scheme member (who may make an application to the sheriff under section 52A(2)).

(6)Subsection (7) applies where—

(a)the scheme member notifies Ministers before the end of the period mentioned in section 52A(3)(a) that the scheme member does not intend to make an application under section 52A(2), or

(b)that period expires without the scheme member having notified Ministers that the scheme member does intend to make such an application.

(7)Ministers must disclose the scheme record as soon as possible after receiving the notification or, as the case may be, the expiry of that period.

(8)Subsection (9) applies where—

(a)the scheme member notifies Ministers before the end of the period mentioned in section 52A(3)(a) that the scheme member intends to make an application under section 52A(2), but

(b)either—

(i)the scheme member does not make such an application before the end of the period mentioned in section 52A(3)(b), or

(ii)the scheme member does make such an application but abandons it before it is determined by the sheriff.

(9)Ministers must not disclose the scheme record (and the request for disclosure of the record is to be treated as having been withdrawn).

52AReview of vetting information in scheme recordS

(1)This section applies where a scheme member receives a copy of the scheme member’s scheme record under section 52(5).

(2)The scheme member may apply to the sheriff for an order requiring Ministers to remove from the scheme record the vetting information referred to in section 52(4).

(3)An application under subsection (2)—

(a)may only be made if the scheme member notifies Ministers before the end of the period of 10 working days beginning with the date on which the scheme record was sent to the scheme member under section 52(5) of an intention to make the application,

(b)must be made before the end of the period of 6 months beginning with the date on which that notification is given, and

(c)must not relate to vetting information about a conviction which has previously been the subject of an application which—

(i)was refused under subsection (6)(b), and

(ii)related to the same type of regulated work.

(4)No finding of fact on which a conviction is based may be challenged in an application under subsection (2).

(5)Proceedings in an application under subsection (2) may take place in private if the sheriff considers it appropriate in all the circumstances.

(6)In determining an application under subsection (2) the sheriff must—

(a)if satisfied that the vetting information is not relevant in relation to a type of regulated work in relation to which the scheme member participates in the Scheme, allow the application,

(b)otherwise, refuse the application.

(7)The sheriff may allow the application in part where it relates to vetting information about two or more convictions.

(8)The decision of the sheriff on an application is final.

(9)Where the sheriff allows the application, the sheriff must order Ministers to remove the information from the scheme record in relation to a type of regulated work in relation to which the scheme member participates in the Scheme.

(10)On the determination of an application under subsection (2), Ministers must treat the disclosure request to which the application relates as if it had been made under section 52 on the day after the date on which the determination is made.]

53Disclosure of short scheme recordsS

(1)[F69Subject to subsection (1A),]Ministers must disclose a scheme member's short scheme record if—

(a)disclosure conditions A to D are satisfied,

(b)they have previously disclosed the member's scheme record, and

(c)the scheme member requests disclosure of a short scheme record only.

[F70(1A)But Ministers must treat the request as a request for a disclosure of the member’s scheme record under section 52 if the scheme record includes vetting information.]

(2)Ministers must send a copy of a record disclosed under subsection (1) to the scheme member who made the disclosure request.

(3)A short scheme record is a document which—

(a)includes a scheme member's statement of scheme membership,

[F71(b)says that no vetting information is included in the scheme member’s scheme record.]

F72(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I78S. 53 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

54Disclosure of scheme membershipS

(1)If disclosure conditions A to C are satisfied, Ministers must disclose a scheme member's statement of scheme membership.

(2)Ministers must send a copy of a statement disclosed under subsection (1) to the scheme member who made the disclosure request.

Commencement Information

I79S. 54 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

55Disclosure conditionsS

The disclosure conditions are—

Condition AThe scheme member requests Ministers to make the disclosure to a person, and in relation to a type of regulated work, specified in the request.
Condition BThe scheme member participates in the Scheme in relation to that type of regulated work.
Condition CThe person to whom the disclosure is to be made declares that the disclosure is requested for the purpose of enabling or assisting the person (or any other person for whom the person acts) to consider the scheme member's suitability to do, or to be offered or supplied for, that type of regulated work.
Condition DThe person to whom the disclosure is to be made is a registered person for the purposes of Part 5 of the 1997 Act.

Commencement Information

I80S. 55 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

56Crown workS

(1)This section applies where a disclosure declaration is made by—

(a)a Minister of the Crown,

(b)a member of the Scottish Executive,

(c)any other office-holder in the Scottish Administration, or

(d)a nominee of any person mentioned in paragraphs (a) to (c).

(2)Where this section applies Ministers may, despite disclosure condition D, disclose the relevant scheme record or short scheme record.

Commencement Information

I81S. 56 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

57Disclosure restrictionsS

(1)Regulations under section 49(1)(d) may prohibit Ministers (at any time or in prescribed circumstances)—

(a)from including a prescribed type of information in scheme records,

(b)from disclosing a prescribed type of information under section 52 or 53.

(2)Subsection (3) applies where—

(a)a scheme member participates in the Scheme in relation to both types of regulated work, and

(b)Ministers receive a disclosure request which includes a disclosure declaration made in relation to only one of those types of regulated work.

(3)Where this subsection applies, Ministers must not—

(a)disclose information which appears in the member's scheme record only because the member participates in the Scheme in relation to the other type of regulated work, or

(b)reveal whether any such information has been included in, or removed from, the member's scheme record.

Commencement Information

I82S. 57 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

[F7357AMeaning of “conviction” and “protected conviction”S

For the purposes of sections [F7452ZA,] 52 and 52A—

  • “conviction” means a conviction within the meaning of the Rehabilitation of Offenders Act 1974, and “spent conviction” is to be construed in accordance with that Act,

  • “protected conviction” is to be construed in accordance with section 126ZA of the 1997 Act . ]

Removal from schemeS

58Removal from schemeS

(1)Ministers must remove a scheme member from the Scheme in relation to a type of regulated work if they—

(a)bar the member from doing that work by listing the member, or

(b)become aware that the member has otherwise been barred from doing that work.

(2)Ministers may remove from the Scheme any scheme member who fails to pay any fee for participation in the Scheme which is prescribed under section 70.

Commencement Information

I83S. 58 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

59Withdrawal from schemeS

Ministers must remove a scheme member from the Scheme in relation to a type of regulated work if—

(a)the scheme member applies to be so removed, and

(b)they are satisfied that the scheme member is not doing that type of regulated work.

Commencement Information

I84S. 59 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

60Notice of removalS

(1)Ministers must give notice confirming that they have removed an individual from the Scheme under section 58 or 59 to—

(a)the individual, and

(b)any other person whom they think fit.

(2)A notice under subsection (1) must—

(a)state the type of regulated work in relation to which the individual has been removed, and

(b)say why the individual has been removed.

(3)A notice under subsection (1)(b) need not comply with subsection (2)(b) if Ministers think that it would be inappropriate for the recipient to be informed of the reason for removal.

Commencement Information

I85S. 60 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

61Retention of scheme records after removalS

(1)Ministers may keep the scheme record of an individual removed from the Scheme and may continue to use that record for the purposes of enabling or assisting them to perform their functions under this Act.

(2)Subsection (1) does not—

(a)entitle Ministers to continue to make enquires in relation to the individual in pursuance of section 47(2), or

(b)require Ministers to otherwise ensure that the retained scheme record is updated.

Commencement Information

I86S. 61 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Evidence of identityS

62Evidence of identityS

(1)An individual making—

(a)an application to join, or to be removed from, the Scheme,

(b)a request to correct a scheme record, or

(c)a disclosure request,

must provide Ministers with such evidence of identity as they may require.

(2)Ministers need not consider such an application or request if—

(a)the individual fails to comply with a requirement under this section or section 63, or

(b)the evidence provided does not satisfy them as to the individual's identity.

Commencement Information

I87S. 62 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

63Power to use fingerprints to check applicant's identityS

(1)Ministers may require an applicant to join the Scheme, or a scheme member, to have fingerprints taken in such manner, and at such place, as may be prescribed for the purposes of enabling or assisting Ministers to satisfy themselves as to the identity of the applicant or, as the case may be, scheme member.

(2)But Ministers may require an individual to have fingerprints taken under subsection (1) only if they are not satisfied by other evidence provided under section 62(1) as to the individual's identity.

(3)Ministers must arrange the destruction of any such fingerprints as soon as reasonably practicable after they have been used for the purposes mentioned in subsection (1).

(4)Any person who holds records of fingerprints for the use of police forces generally must make those records available to Ministers for the purposes of this section.

(5)This section does not affect the generality of section 62 in relation to any other type of evidence of identity.

Commencement Information

I88S. 63(1) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I89S. 63(1) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

I90S. 63(2)-(5) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

64Power to use personal data to check applicant's identityS

(1)Ministers may use information given to them by personal data holders to check evidence of identity given to them for the purposes of section 62.

(2)Personal data holders are—

  • The Identity and Passport Service

  • The Driver and Vehicle Licensing Agency

  • Ministers of the Crown in connection with keeping of records of national insurance numbers

  • Such other persons holding data about individuals as may be prescribed

Commencement Information

I91S. 64(1) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I92S. 64(2) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I93S. 64(2) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

Offences relating to vetting informationS

65Falsification of scheme records etc.S

(1)It is an offence for a person, with intent to deceive, to—

(a)make a document which purports to be a disclosure record,

(b)alter a disclosure record,

(c)use, or allow another person to use, a disclosure record in a way which suggests that it relates to an individual other than the scheme member in respect of whom it was disclosed.

(2)It is an offence for a person to knowingly make a false or misleading declaration or other statement for the purposes of—

(a)obtaining, or enabling another person to obtain, a disclosure record, or

(b)satisfying Ministers that an individual who is doing regulated work is not doing so.

Commencement Information

I94S. 65 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

66Unlawful disclosure of scheme records etc.S

(1)A person to whom disclosure information is disclosed under section 51, 52, 53 or 54 commits an offence if the person discloses it to any other person.

(2)A person does not commit an offence under subsection (1) by disclosing the disclosure information—

(a)to any of the person's employees,

(b)where the person is not an individual, to any member or officer of the person, or

(c)where the disclosure was made for the purpose of enabling or assisting another person to consider a scheme member's suitability to do, or to be offered or supplied for, regulated work—

(i)to that other person,

(ii)to any of that other person's employees, or

(iii)where that other person is not an individual, to any member or officer of that other person.

(3)An individual to whom disclosure information is disclosed lawfully by virtue of subsection (2)(a) or (b) or (4)(a) commits an offence if the individual discloses it to any other person.

(4)An individual does not commit an offence under subsection (3) by disclosing the disclosure information, in the course of the individual's duties—

(a)to any other individual who is a member, officer or employee of the person to whom the corresponding disclosure was made under section 52, 53 or 54, or

(b)where the disclosure was made for the purpose of enabling or assisting another person to consider a scheme member's suitability to do, or to be offered or supplied for, regulated work—

(i)to that other person,

(ii)to any of that other person's employees, or

(iii)where that other person is not an individual, to any member or officer of that other person.

(5)A person to whom disclosure information is disclosed lawfully by virtue of subsection (2)(c)(i) or (4)(b)(i) commits an offence if the person discloses it to any other person.

(6)A person does not commit an offence under subsection (5) by disclosing the disclosure information—

(a)to any of the person's employees, or

(b)where the person is not an individual, to any member or officer of the person.

(7)An individual to whom disclosure information is disclosed lawfully by virtue of subsection (2)(c)(ii) or (iii), (4)(b)(ii) or (iii) or (6) commits an offence if the person discloses it to any other person.

(8)An individual does not commit an offence under subsection (7) by disclosing the disclosure information, in the course of the individual's duties, to any other individual who is a member, officer or employee of the person for whose purposes the corresponding disclosure was made under section 52, 53 or 54.

(9)A person to whom disclosure information is disclosed unlawfully commits an offence if the person discloses it to any other person.

Commencement Information

I95S. 66 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

67Unlawful requests for scheme records etc.S

(1)It is an offence to request provision of, or to otherwise seek sight of, a disclosure record for a purpose other than the permitted purpose.

(2)It is an offence to use disclosure information for a purpose other than the permitted purpose.

(3)The permitted purpose is to enable or assist a person (“Z”) to consider the suitability of the individual to whom the record or information relates—

(a)to do, or to be offered or supplied for, the type of regulated work to which the disclosure record relates, or

(b)to do that type of regulated work in prescribed circumstances for any person other than Z in pursuance of arrangements under which services are provided to Z.

(4)References in subsection (1) to disclosure records do not include references to information included in disclosure records.

Commencement Information

I96S. 67(1)(2)(3)(a)(4) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I97S. 67(3)(b) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I98S. 67(3)(b) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

68Unlawful disclosure etc.: supplementaryS

(1)Nothing in section 66 prevents disclosure of disclosure information—

(a)by the scheme member to whom the information relates,

(b)by any other person with the consent of the scheme member to whom the information relates,

(c)to an office-holder in the Scottish Administration or a government department,

(d)to a person appointed to any office by virtue of any enactment,

(e)in accordance with any obligation to provide information imposed by virtue of any enactment,

(f)for the purposes of answering a prescribed type of exempted question, or

(g)for some other prescribed purpose.

(2)Nothing in subsections (2), (4), (6) or (8) of section 66 makes lawful any disclosure of disclosure information made otherwise than for the purpose of enabling or assisting the person in relation to whom the corresponding disclosure request was made to consider the suitability of the scheme member concerned to do, or to be offered or supplied for, the type of regulated work concerned.

(3)Nothing in section 67 prevents use of disclosure information for a purpose other than the permitted purpose—

(a)by the scheme member to whom the information relates,

(b)by any other person with the consent of the scheme member to whom the information relates,

(c)by an office-holder in the Scottish Administration or a government department,

(d)by a person appointed to any office by virtue of any enactment,

(e)in accordance with any obligation to provide information imposed by virtue of any enactment,

(f)in order to answer a prescribed type of exempted question, or

(g)in any other prescribed circumstances.

(4)References in sections 66 and 67 and in this section to disclosure information are references to—

(a)disclosure records disclosed under section 52, 53 or 54, and

(b)any information in such a disclosure record which is obtained only by virtue of section 51, 52, 53 or 54.

(5)“Exempted question”, where used in subsections (1)(f) and (3)(f), means a question in relation to which section 4(2)(a) or (b) of the Rehabilitation of Offenders Act 1974 (c. 53) has been excluded by order made under section 4(4) of that Act.

Commencement Information

I99S. 68 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

69Penalties for offences relating to vetting informationS

A person guilty of an offence under section 65, 66 or 67 is liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding level 5 on the standard scale, or to both.

Commencement Information

I100S. 69 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Fees, forms and other proceduresS

70FeesS

(1)Ministers may charge such fee as may be prescribed—

(a)in respect of applications to join, or to be removed from, the Scheme,

(b)in respect of disclosure requests, and

(c)otherwise in respect of the performance of their functions under this Part.

(2)Regulations may, in particular, provide for—

(a)different fees in different circumstances,

(b)annual or other recurring fees in respect of participation in the Scheme,

(c)reduction, waiver or refund of fees in prescribed circumstances.

(3)Before prescribing fees under this section, Ministers must have regard to—

(a)the circumstances in which those fees are payable, and

(b)the desirability of maintaining an appropriate balance among—

(i)the quality of the performance of their vetting, barring and disclosure functions,

(ii)the cost of that performance, and

(iii)the fees paid to them in respect of that performance.

(4)Where regulations provide for a fee to be charged in respect of—

(a)an application to join, or to be removed from, the Scheme, or

(b)a disclosure request,

Ministers need not consider the application or request unless the fee is paid.

Commencement Information

I101S. 70(1)-(3) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I102S. 70(1)-(3) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

I103S. 70(4) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

71FormsS

(1)It is for Ministers to determine the form and manner in which—

(a)applications to join, or to be removed from, the Scheme,

(b)requests to correct a scheme record, and

(c)disclosure requests (including disclosure declarations made in relation to them),

must be made.

(2)Ministers may, in particular, determine that any such application, request or declaration may be made in electronic form.

(3)Ministers need not consider any such application, request or declaration unless it is made in the form and manner determined by them (or in a form and manner as close to that as circumstances permit).

Commencement Information

I104S. 71 in force at 12.10.2010 by S.S.I. 2010/344, art. 2(a)(iii)

72ProcedureS

(1)Ministers may, by regulations, make such further provision about the administration of the Scheme as they think fit.

(2)Regulations may, in particular—

(a)prescribe further procedure relating to applications to join, or to be removed from, the Scheme,

(b)prescribe circumstances in which scheme members are to be removed from the Scheme,

(c)prescribe circumstances in which disclosure condition A (see section 55) is to be treated as being satisfied when a person other than a scheme member makes a disclosure request in respect of that member,

(d)prescribe further procedure relating to making disclosure requests and to disclosing information in pursuance of such requests.

Commencement Information

I105S. 72 in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I106S. 72 in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

SupplementaryS

73Consideration of suitabilityS

References in this Part to a person (“A”) considering an individual's suitability to do, or to be offered or supplied for, any type of regulated work are references to A considering the individual's suitability—

(a)to do that type of regulated work for A,

(b)to be supplied by A to do that type of regulated work for another person,

(c)to be a teacher (for the purposes of [F75 registration under the Public Services Reform (General Teaching Council for Scotland) Order 2011 ])),

(d)to provide or manage a care service (for the purposes of the [F76 Part 5 of the 2010 Act ]),

(e)to be registered under Part 3 (registration of social workers etc.) of the 2001 Act,

(f)to foster a child (for the purposes of any regulations made under section 5(2) of the Social Work (Scotland) Act 1968 (c. 49)), or

(g)for any other prescribed purpose.

Textual Amendments

F76Words in s. 73(d) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 32; S.S.I. 2010/321, art. 3, Sch.

Commencement Information

I107S. 73(a)-(f) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I108S. 73(g) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I109S. 73(g) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

74Delegation of vetting and disclosure functionsS

(1)Ministers may, to such extent and subject to such conditions as they think appropriate, delegate any of their functions under this Part (other than excepted functions) to such person as they may determine.

(2)An excepted function is a function—

(a)relating to the making of regulations or orders,

(b)under section 71, or

(c)relating to the determination of an appropriate fee under section 75(4).

(3)A delegation under subsection (1) may be varied or revoked at any time.

(4)No proceedings are competent against a person performing functions delegated under this section by reason of an inaccuracy in the information made available or provided to the person in accordance with section 63(4) or 75.

Commencement Information

I110S. 74 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

75Sources of informationS

(1)Any person who holds records of convictions, cautions or other information for the use of police forces generally must make those records available to Ministers for the purposes of enabling or assisting them to perform their functions under this Part.

(2)[F77 The chief constable ] must, as soon as practicable, comply with a request by Ministers to provide them with information of the type described in section 49(1)(c) for the purposes of enabling or assisting them to perform their functions under this Part.

(3)[F78The chief constable] must not provide information to Ministers under subsection (2) if the [F79 chief constable ] thinks that disclosing that information to the individual to whom it relates would be contrary to the interests of the prevention or detection of crime.

(4)Ministers must pay the [F80 Scottish Police Authority ] such fee as Ministers think appropriate for information provided under subsection (2).

(5)No proceedings are competent against Ministers by reason of an inaccuracy in the information made available or provided to them in accordance with this section or section 63(4) [F81 (or in pursuance of any other power or duty to provide information to Ministers in relation to their functions under this Part) ].

Textual Amendments

F77Words in s. 75(2) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(4)(a); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F78Words in s. 75(3) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(4)(b)(i); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F79Words in s. 75(3) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(4)(b)(ii); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F80Words in s. 75(4) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(4)(c); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F81Words in s. 75(5) inserted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 10(5)

Commencement Information

I111S. 75 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

76Police access to scheme informationS

(1)Ministers must make available to [F82the chief constable]

(a)the name of each individual participating in the Scheme,

(b)confirmation of whether each such individual participates in the Scheme in relation to regulated work with—

(i)children,

(ii)adults, or

(iii)both, and

(c)any other information held by Ministers by virtue of their administration of the Scheme which Ministers consider would enable or assist [F83 constables of the Police Service of Scotland ] to satisfy themselves as to the identity of such individuals.

(2)Information disclosed under subsection (1) may be used by [F84constables of the Police Service of Scotland] only for the purpose of—

(a)enabling or assisting them to perform their functions under or by virtue of this Part,

(b)the prevention or detection of crime, or

(c)the apprehension or prosecution of offenders.

Textual Amendments

F82Words in s. 76(1) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(5)(a)(i); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F83Words in s. 76(1)(c) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(5)(a)(ii); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F84Words in s. 76(2) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(5)(b); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Commencement Information

I112S. 76 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

77Statements of scheme membership: disclosure of whether individual under consideration for listingS

(1)Despite section 46(2)(c), a statement of scheme membership must not disclose whether Ministers are considering whether to list an individual if Ministers have not made a decision under section 15 or, as the case may be, 16 within the relevant period.

(2)The relevant period is—

(a)where the information which caused Ministers to consider whether to list the individual is the subject of legal or disciplinary proceedings, the period of 6 months which begins on the date on which the proceedings are finally determined,

(b)in any other case, the period of 6 months which begins on the date on which Ministers made a decision under section 10, 11, 12 or 13 to consider whether to list the individual, or

(c)where either of the periods mentioned in paragraphs (a) and (b) is extended under subsection (3), the extended period.

(3)The sheriff may, on an application by Ministers and on cause shown, extend the period mentioned in paragraph (a) or (b) of subsection (2) (or, as the case may be, that period as previously extended under this subsection).

(4)A period may not be extended (or further extended) under subsection (3) for a period of longer than 6 months beginning with the date on which the extension (or further extension) is granted.

(5)An application under subsection (3) must be made before the expiry of the relevant period.

(6)Where an application under subsection (3) is made, the relevant period is to be treated for the purposes of subsection (1) as not having expired until the application is determined.

(7)The sheriff may, on cause shown, dispense with any requirement—

(a)to intimate an application under subsection (3) to the individual,

(b)to notify the individual of any interlocutor relating to the application.

(8)For the purposes of subsection (5), an application is made when it is lodged with the sheriff clerk.

(9)Any court proceedings under subsection (3) may take place in private if the sheriff considers it appropriate in all the circumstances.

(10)For the purposes of subsection (2)(a), proceedings are finally determined when—

(a)the proceedings are terminated or abandoned without a decision being made,

(b)a decision is made against which no appeal lies, or

(c)where a decision is made which may be appealed, the period during which an appeal (other than an appeal which need not be timeous) may be brought expires without an appeal being brought.

(11)For the purposes of subsection (10), an appeal which need not be timeous is—

(a)an appeal under Part 8 (appeals from solemn proceedings) of the 1995 Act in relation to which the High Court must, if the appeal is to be competent, extend the time within which intimation of intention to appeal or note of appeal or both may be given,

(b)an appeal under Part 10 (appeals from summary proceedings) of the 1995 Act in relation to which the High Court must, if the appeal is to be competent, extend the time within which an application for a stated case may be made, or

(c)an appeal under section 191 (appeal by suspension on ground of miscarriage of justice) of the 1995 Act.

Modifications etc. (not altering text)

Commencement Information

I113S. 77 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Part 3 SAmendment of Part 5 of the Police Act 1997

78Information in criminal conviction and record certificatesS

(1)In section 112(2) of the 1997 Act, for the words from “or” immediately following paragraph (a) to the end of paragraph (b) substitute (or states that there is no such conviction); and

(b)if the applicant is subject to notification requirements under Part 2 of the Sexual Offences Act 2003 (c. 42), states that fact..

(2)Section 113A of the 1997 Act is amended as follows—

(a)in subsection (3), for the words from “or” immediately following paragraph (a) to the end of paragraph (b) substitute (or states that there is no such matter); and

(b)if the applicant is subject to notification requirements under Part 2 of the Sexual Offences Act 2003 (c. 42), states that fact.,

(b)in the definition of “central records” in subsection (6), for “and cautions” substitute “ , cautions or other information ”,

(c)in the definition of “relevant matter” in that subsection, the word “and” immediately following paragraph (a) is repealed,

(d)at the end of paragraph (b) of that definition, insert and

(c)a prescribed court order..

(3)In section 119(1) of the 1997 Act, for “or cautions” substitute “ , cautions or other information ”.

(4)In section 119A of the 1997 Act—

(a)in subsection (1), after “convictions” insert “ or other information ”,

(b)in subsection (2), for “or cautions” substitute “ , cautions or other information ”.

Commencement Information

I114S. 78(2)-(4) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 3)

79Form of Part 5 applicationsS

(1)In each of the following provisions of the 1997 Act, the words “in the prescribed manner and form” are repealed—

  • section 112(1)(a)

  • section 113A(1)(a)

  • section 113B(1)(a)

  • section 114(1)(a)

  • section 116(1)(a)

(2)In sections 117(1) and 120(2) of the 1997 Act, the words “in writing” are repealed.

(3)After section 125 of the 1997 Act insert—

125AForm of applications

(1)It is for the Scottish Ministers to determine the form and manner in which applications must be made for the purposes of sections 112(1)(a), 113A(1)(a), 113B(1)(a), 114(1)(a), 116(1)(a), 117(1), and 120(2).

(2)The Scottish Ministers may, in particular, determine that such applications may be made in electronic form (and may be signed or countersigned electronically).

(3)The Scottish Ministers need not consider any such application unless it is made in the form and manner determined by them (or in a form and manner as close to that as circumstances permit)..

Commencement Information

I115S. 79 in force at 11.1.2008 by S.S.I. 2007/564, art. 2, Sch.

80Payment of fee for information from certain police forcesS

In section 113B of the 1997 Act, after subsection (5) insert—

(5A)The Scottish Ministers must pay to such body as may be prescribed such fee as they think appropriate for information received from the chief officer of a body mentioned in subsection (10)(j) to (m) as a result of a request under subsection (4) or (5)..

Commencement Information

I116S. 80 in force at 11.1.2008 by S.S.I. 2007/564, art. 2, Sch.

81Regulations about registrationS

(1)Section 120 of the 1997 Act is amended as follows—

(a)in subsection (2), for “section 120A and regulations under subsection (3)” substitute “ sections 120ZB and 120A ”,

(b)subsection (3) is repealed.

(2)Before section 120A of the 1997 Act insert—

120ZBRegulations about registration

(1)The Scottish Ministers may by regulations make further provision about registration.

(2)Regulations under this section may in particular make provision for—

(a)the payment of fees;

(b)the information to be included in the register;

(c)the registration of any person to be subject to conditions;

(d)the nomination by—

(i)a body corporate or unincorporated; or

(ii)a person appointed to an office by virtue of an enactment, whether that body or person is registered or applying to be registered,

of an individual to act for the body or, as the case may be, person in relation to disclosure applications;

(e)the refusal by the Scottish Ministers, on such grounds as may be specified in or determined under the regulations, to accept or to continue to accept any nomination made by virtue of this section;

(f)the refusal by the Scottish Ministers to include persons who, in the opinion of the Scottish Ministers, are likely to act in relation to fewer disclosure applications in any period of 12 months than a minimum number specified in the regulations;

(g)the removal from the register of persons who have, in any period of 12 months during which they were registered, acted in relation to fewer disclosure applications than the minimum number specified under paragraph (f);

(h)the removal from the register of persons who are, in the opinion of the Scottish Ministers, no longer likely to wish to act in relation to disclosure applications;

(i)the removal from the register of any person who has breached any condition of the person's registration; and

(j)the period which must elapse before any person refused registration or removed from the register may apply to be included in the register.

(3)The provision which may be made by virtue of subsection (2)(c) includes provision—

(a)for the registration or continued registration of any person to be subject to prescribed conditions or, if the regulations so provide, such conditions as the Scottish Ministers think fit; and

(b)for the Scottish Ministers to vary or revoke those conditions.

(4)In subsection (2), references to acting in relation to disclosure applications are to be read as references to—

(a)countersigning applications under section 113A or 113B; or

(b)making declarations in relation to requests for disclosures under section 52 or 53 of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14)..

(3)Section 124A of the 1997 Act is amended as follows—

(a)in subsection (1), for “section 120(3)(b)” substitute “ section 120ZB(2)(h) ”, and

(b)in subsection (3), for “section 120(3)(ac)” substitute “ section 120ZB(2)(j) ”.

Commencement Information

I117S. 81(1)(3) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 4)

I118S. 81(2) in force at 12.10.2010 by S.S.I. 2010/344, art. 2(a)(iv)

Part 4 SSchool care accommodation services

82Meaning of “school care accommodation service”S

(1)In section 2 of the 2001 Act, for subsection (4) substitute—

(4)A school care accommodation service is a service which—

(a)consists of the provision of residential accommodation to a pupil in a place in or outwith a public, independent or grant-aided school;

(b)is provided (whether or not during term-time) for the purpose of or in connection with the pupil's attendance at the school (whether current or otherwise); and

(c)is provided to the pupil by—

(i)an education authority or the managers of an independent or grant-aided school; or

(ii)any person under arrangements made between that person and any such authority or managers.

(4A)For the purposes of subsection (4)(c)(i) above, a service which—

(a)falls within the description given by subsection (4)(a), (b) and (c)(ii) above; and

(b)is provided to the pupil in domestic premises,

is to be regarded as being provided by that authority or (as the case may be) those managers.

(4B)A service may be excepted from the definition in subsection (4) above by regulations..

(2)In section 77(1) of the 2001 Act, in the definition of “school care accommodation service”, for “has the meaning given by subsection (4) of section 2” substitute “ is to be construed in accordance with subsections (4) to (4B) of section 2 of ”.

Commencement Information

I119S. 82 in force at 1.9.2007 by S.S.I. 2007/385, art. 2, Sch.

83Application of fire safety rules to school care accommodation serviceS

In section 78 of the Fire (Scotland) Act 2005 (asp 5), in subsection (5)(c), after “section)” insert “ except where the service is provided as mentioned in subsection (4)(c)(ii) of that section ”.

Commencement Information

I120S. 83 in force at 1.9.2007 by S.S.I. 2007/385, art. 2, Sch.

Part 5 SSupplementary and general

84GuidanceS

(1)Ministers must issue guidance on such matters relating to the operation of Parts 1 and 2 of this Act as they think appropriate.

(2)Ministers may revoke or vary guidance issued under subsection (1) at any time.

Commencement Information

I121S. 84 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

85Annual reportS

(1)Ministers must, in respect of each reporting year, prepare a report on the performance of their vetting, barring and disclosure functions during that year.

(2)Ministers must lay a copy of each such report before the Scottish Parliament as soon as practicable after the end of the reporting year to which it relates.

(3)A reporting year is—

(a)the period beginning with the day on which this section comes into force and ending on 31 March, and

(b)each successive year ending on that date.

Commencement Information

I122S. 85 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

86Transfer of Disclosure Scotland staff etc.S

(1)Ministers may by order (a “staff transfer order”) make provision for persons employed by virtue of section 9 of the Police (Scotland) Act 1967 (c. 77) (employees other than constables) by the Strathclyde Joint Police Board (the “Police Board”) to transfer to, and become members of the staff of, the Scottish Administration.

(2)A staff transfer order may specify particular persons, or types of person, to whom the order applies.

(3)Subsections (4) to (9) apply where—

(a)a person is to be transferred by virtue of a staff transfer order, and

(b)immediately before the day on which the staff transfer order comes into force in relation to the person (the “transfer day”), the person has a contract of employment with the Police Board.

(4)On and after the transfer day the contract of employment has effect as if originally made between the person and Ministers on behalf of the Crown.

(5)On the transfer day, the rights, powers, duties and liabilities of the Police Board under or in connection with the contract of employment are transferred to Ministers.

(6)Anything done before the transfer day by or in relation to the Police Board in respect of the contract of employment or the person is to be treated on and after that day as having been done by or in relation to Ministers.

(7)If, before the transfer day, the person gives notice to Ministers or the Police Board that the person objects to becoming a member of staff of the Scottish Administration—

(a)the contract of employment with the Police Board is, on the day immediately preceding the day that would, but for the objection, have been the transfer day, terminated, and

(b)the person is not to be treated (whether for the purpose of any enactment or otherwise) as having been dismissed by virtue of the giving of such notice.

(8)Nothing in this section prejudices any right of the person to terminate the contract of employment if a substantial detrimental change in the person's working conditions is made.

(9)Where—

(a)the identity of the person's employer changes by virtue of the making of a staff transfer order, and

(b)it is shown that, in all the circumstances, the change is significant and detrimental to the person,

the person has the right to terminate the contract of employment.

(10)A staff transfer order may make such further provision about such transfers as Ministers think fit.

Commencement Information

I123S. 86 in force at 1.9.2007 by S.S.I. 2007/385, art. 2, Sch.

87Power to give effect to corresponding legislation in England, Wales and Northern IrelandS

(1)Ministers may by order make such provision as they consider appropriate in consequence of, or for the purposes of giving full effect to, any provision made by virtue of the Safeguarding Vulnerable Groups Act 2006 (c. 47).

(2)Ministers may by order make such provision as they consider appropriate in consequence of, or for the purposes of giving full effect to, any legislation which forms part of the law of Northern Ireland which in Ministers' opinion—

(a)corresponds to provision made by virtue of this Act, or

(b)affects the operation of any provision made by virtue of this Act.

(3)An order under subsection (1) or (2) may modify any enactment, instrument or document.

Commencement Information

I124S. 87 in force at 11.1.2008 by S.S.I. 2007/564, art. 2, Sch.

88Modification of enactmentsS

Schedule 4 contains minor amendments and amendments and repeals consequential on the provisions of this Act.

Commencement Information

I125S. 88 in force at 1.9.2007 for specified purposes by S.S.I. 2007/385, art. 2, Sch.

I126S. 88 in force at 11.1.2008 for specified purposes by S.S.I. 2007/564, art. 2, Sch.

I127S. 88 in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I128S. 88 in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

89Offences by bodies corporate etc.S

(1)Where—

(a)an offence under this Act has been committed by—

(i)a body corporate,

(ii)a Scottish partnership, or

(iii)an unincorporated association other than a Scottish partnership, and

(b)it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of—

(i)a relevant individual, or

(ii)an individual purporting to act in the capacity of a relevant individual,

that individual as well as the body corporate, partnership or, as the case may be, unincorporated association is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2)In subsection (1), “relevant individual” means—

(a)in relation to a body corporate other than a council—

(i)a director, manager, secretary or other similar officer of the body,

(ii)where the affairs of the body are managed by its members, the members,

(b)in relation to a council, an officer or member of the council,

(c)in relation to a Scottish partnership, a partner, and

(d)in relation to an unincorporated association other than a Scottish partnership, a person who is concerned in the management or control of the association.

(3)Any penalty imposed on a body corporate, Scottish partnership or unincorporated association on conviction of an offence under this Act is to be recovered by civil diligence in accordance with section 221 of the 1995 Act.

Commencement Information

I129S. 89 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

90Crown applicationS

(1)This Act binds the Crown.

(2)But subordinate legislation made under this Act need not bind the Crown.

(3)No contravention by the Crown of a provision made by or under this Act makes the Crown criminally liable.

(4)But the Court of Session may, on the application of any public body or office-holder having responsibility for enforcing that provision, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(5)Despite subsection (3), the provisions made by and under this Act apply to persons in the public service of the Crown as they apply to other persons.

Commencement Information

I130S. 90 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Part 6 SInterpretation

91Regulated workS

(1)Regulated work means regulated work with children or protected adults.

(2)Regulated work with children is work of the type described in schedule 2.

(3)Regulated work with adults is work of the type described in schedule 3.

(4)References in this Act to types of regulated work are to be construed accordingly.

Commencement Information

I131S. 91 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 3)

92Individuals barred from regulated workS

(1)An individual is barred from regulated work with children if the individual is—

(a)listed in the children's list,

(b)included in the children's barred list maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006 (c. 47),

(c)included (otherwise than provisionally) in the list kept under article 3 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003, or

(d)an individual falling within subsection (3).

(2)An individual is barred from regulated work with adults if the individual is—

(a)listed in the adults' list,

(b)included in the adults' barred list maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006 (c. 47),

(c)included (otherwise than provisionally) in the list kept under article 35 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003, or

(d)an individual falling within subsection (4).

(3)An individual falls within this subsection if, under the law of the Channel Islands, the Isle of Man, any British overseas territory or any other territory or country outwith the United Kingdom, the individual is subject to a prohibition or disqualification which Ministers by order provide corresponds to being barred from regulated work with children by virtue of any of paragraphs (a) to (c) of subsection (1).

(4)An individual falls within this subsection if, under the law of the Channel Islands, the Isle of Man, any British overseas territory or any other territory or country outwith the United Kingdom, the individual is subject to a prohibition or disqualification which Ministers by order provide corresponds to being barred from regulated work with adults by virtue of any of paragraphs (a) to (c) of subsection (2).

(5)Ministers may by order substitute such other list maintained under the law of England and Wales or, as the case may be, Northern Ireland, which in Ministers' opinion corresponds to the children's list for a list mentioned in subsection (1)(b) and (c).

(6)Ministers may by order substitute such other list maintained under the law of England and Wales or, as the case may be, Northern Ireland, which in Ministers' opinion corresponds to the adults' list for a list mentioned in subsection (2)(b) or (c).

Modifications etc. (not altering text)

Commencement Information

I132S. 92(1)(2) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I133S. 92(3)-(6) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I134S. 92(3)-(6) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

93Meaning of “harm”S

(1)For the purposes of this Act, an individual (“A”) harms another (“B”) if—

(a)A's conduct causes B physical harm,

(b)A's conduct causes B psychological harm (for example: by putting B in a state of fear, alarm or distress), or

(c)A engages in unlawful conduct which appropriates or adversely affects B's property, rights or interests (for example: theft, fraud, embezzlement or extortion),

and references to harm are to be construed accordingly.

(2)For the purposes of this Act, an individual (“C”) places another (“D”) at risk of harm if—

(a)C attempts to harm D,

(b)C incites another to harm D,

(c)C encourages D to self-harm, or

(d)C's conduct otherwise causes, or is likely to cause, D to be harmed,

and references to being placed at risk of harm are to be construed accordingly.

Commencement Information

I135S. 93 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

94Meaning of “protected adult”S

(1)For the purposes of this Act, a “protected adult” is an individual aged 16 or over who is provided with—

(a)a service by a person carrying on—

(i)a support service,

(ii)an adult placement service,

(iii)a care home service, or

(iv)a housing support service,

which is registered under [F85 Part 5 of the 2010 Act ],

(b)a prescribed service—

(i)by a health body acting in exercise of functions conferred by the National Health Service (Scotland) Act 1978 (c. 29),

(ii)which is secured by a health body acting in exercise of such functions,

[F86(iia)by, or which is secured by, a person to whom such functions are delegated by a Health Board in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014,]

(iii)by an independent hospital,

(iv)by a private psychiatric hospital,

(v)by an independent clinic, or

(vi)by an independent medical agency,

(c)a community care service—

(i)provided or secured by a council under the Social Work (Scotland) Act 1968 (c. 49) or the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), or

[F87(ia)provided or secured by a person to whom a function conferred by either of those Acts is delegated by a council in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014,]

(ii)in respect of which F88... a direct payment, or [F89is made by a council or a person to whom functions are delegated by a council in pursuance of an integration scheme under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014 (or by another person acting under the direction of the person to whom functions are delegated)]

(d)a prescribed welfare service.

(2)Ministers may by order modify subsection (1) in order to change the definition of “protected adult” as they think appropriate.

(3)Expressions used in [F90

(a)paragraph (a) of subsection (1) have the same meaning as in schedule 12 to the 2010 Act,

(b)paragraph (b)(i) and (ii) of that subsection have the same meaning as in section 105 of that Act,]

[F91(c)paragraph (b)(iii) to (vi) of that subsection have the same meanings as in section 10F of the National Health Service (Scotland) Act 1978 (c. 29).]

(4)In subsection (1)(c)—

  • community care service” has the same meaning as in the Social Work (Scotland) Act 1968 (c. 49),

  • direct payment[F92 has the same meaning as in section 4(2) of the Social Care (Self-directed Support) (Scotland) Act 2013 ].

(5)In subsection (1)(d), “welfare service” includes any service which provides support, assistance, advice or counselling to individuals with particular needs.

Textual Amendments

F85Words in s. 94(1)(a) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 33(a); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F90Words in s. 94(3) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 33(b); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F91S. 94(3)(c) added (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(d); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

Commencement Information

I136S. 94(1)(a)(c)(2)-(6) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

I137S. 94(1)(b)(d) in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I138S. 94(1)(b)(d) in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

95Meaning of “work”S

(1)In this Act “work” means work of any kind and, in particular, includes—

(a)paid and unpaid work,

(b)work under a contract (for example: under a contract of service or apprenticeship or under a contract for services),

(c)carrying out the functions of any office established by virtue of an enactment,

(d)being a foster carer, and

(e)caring for, or supervising, individuals participating in any organised activity,

and references to a “worker” and to “working” are to be construed accordingly.

(2)Despite the generality of subsection (1), “work” does not include work falling within subsection (3) or (4).

(3)Work falls within this subsection if it is done for an individual (“A”)—

(a)in the course of a family relationship, and

(b)for the benefit of A or a member of A's family.

(4)Work falls within this subsection if it is done for an individual (“B”)—

(a)in the course of a personal relationship,

(b)for no commercial consideration, and

(c)for the benefit of B, a member of B's family or B's friend.

(5)A family relationship includes a relationship between two individuals who—

(a)live in the same household, and

(b)treat each other as though they were members of the same family.

(6)A personal relationship is a relationship between or among friends.

(7)Any friend of a member of an individual's family is to be regarded as being the individual's friend.

(8)Benefit” does not include commercial benefit.

(9)Ministers may prescribe circumstances in which work either is or is not to be treated for the purposes of this Act as being done in the course of a family or personal relationship.

Commencement Information

I139S. 95 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

96FosteringS

(1)For the purposes of this Act, a “foster carer”, in relation to a child, is an individual other than a parent of the child—

(a)with whom the child has been placed under section 26(1)(a) (placement by councils) of the Children (Scotland) Act 1995 (c. 36) (“the 1995 Act”),

(b)who looks after the child in pursuance of arrangements made by a council under 26(1)(c) (arrangements for accommodating children) of the 1995 Act,

(c)who—

(i)maintains the child as a foster child for the purposes of the Foster Children (Scotland) Act 1984 (c. 56), or

(ii)otherwise looks after the child in circumstances in which that Act applies by virtue of section 17 of that Act, or

(d)who looks after the child in pursuance of—

(i)a permanence order, or

(ii)a [F93 compulsory supervision order ].

(2)A foster carer is to be treated as doing work for—

(a)in the case of a foster carer of the type described in subsection (1)(a), the council which placed the child with that foster carer under section 26(1)(a) of the 1995 Act,

(b)in the case of a foster carer of the type described in subsection (1)(b) or (c), any person who—

(i)made arrangements with the foster carer in pursuance of which the foster carer looks after the child, and

(ii)has power to terminate those arrangements,

(c)in the case of a foster carer of the type described in subsection (1)(d)(i), the council which has the right to regulate the child's residence,

(d)in the case of a foster carer of the type described in subsection (1)(d)(ii), the council in whose area the child is looked after.

(3)Sections 34 to 37 do not apply in relation to work as a foster carer where the work is done in pursuance of —

(a)a permanence order which vests any parental responsibility or parental right in the foster carer, or

(b)a [F94 compulsory supervision order ].

(4)Subsections (2) to (7) of section 95 do not apply in relation to work as a foster carer.

(5)References in section 3 to dismissing an individual doing regulated work are, in relation to foster carers, to be read as references to terminating the fostering arrangements concerned.

(6)References in this section to looking after a child in pursuance of a permanence order are references to looking after a child in consequence of the exercise by the council to which the order relates of its right to regulate the child's residence.

(7)References in this section to the council's right to regulate a child's residence are references to the parental right vested in the council by virtue of section 81(1)(b) of the Adoption and Children (Scotland) Act 2007 (asp 4) (mandatory provision in permanence order).

(8)In this section—

  • [F95 “compulsory supervision order” has the meaning given by section 83 of the Children’s Hearings (Scotland) Act 2011 (asp 1), ]

  • parental responsibilities” and “parental rights” have the same meaning as they have in the 1995 Act,

  • permanence order” means an order made under section 80(1) of the Adoption and Children (Scotland) Act 2007 (asp 4),

  • F96...

97General interpretationS

(1)In this Act—

  • the 1995 Act” means the Criminal Procedure (Scotland) Act 1995 (c. 46),

  • the 1997 Act” means the Police Act 1997 (c. 50),

  • the 2001 Act” means the Regulation of Care (Scotland) Act 2001 (asp 8),

  • [F97the 2010 Act ” means the Public Services Reform (Scotland) Act 2010 (asp 8), ]

  • care service” has the same meaning as in [F98 Part 5 of the 2010 Act ],

  • charity” means a body entered in the Scottish Charity Register,

  • charity trustees” has the meaning given in section 106 of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10),

  • chief constable” means the chief constable of [F99 the Police Service of Scotland ],

  • child” means an individual under the age of 18,

  • conduct” includes neglect and other failures to act,

  • council” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39),

  • disciplinary proceedings” means proceedings in which the regulatory body for a profession is to decide whether disciplinary action should be taken against an individual carrying on that profession,

  • disclosure declaration” means a declaration of the type referred to in disclosure condition C (see section 55) which is made in relation to a disclosure request,

  • disclosure record” means a—

    (a)

    scheme record,

    (b)

    short scheme record, or

    (c)

    statement of scheme membership,

    disclosed under Part 2,

  • disclosure request” means a request for a disclosure under section 52, 53 or 54 of—

    (a)

    a scheme record,

    (b)

    a short scheme record, or

    (c)

    a statement of scheme membership,

  • employment” means paid employment, whether under a contract of service or apprenticeship or under a contract for services (and “employee” and related words are to be construed accordingly),

  • employment agency” means the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of providing services (whether by the provision of information or otherwise) for the purpose of finding individuals employment with employers or of supplying employers with individuals for employment by them,

  • employment business” means the business (whether or not carried on with a view to profit and whether or not carried on in conjunction with any other business) of supplying individuals in the employment of the person carrying on the business to act for, and under the control of, other persons in any capacity,

  • Health Board” means a board constituted by order under section 2(1)(a) of the National Health Service (Scotland) Act 1978 (c. 29),

  • Her Majesty's Inspectors of Schools” means the inspectors of schools appointed by Her Majesty under the Education (Scotland) Act 1980 (c. 44),

  • [F100Independent Safeguarding Authority]” and “[F100ISA]” mean the body established by section 1 of the Safeguarding Vulnerable Groups Act 2006 (c. 47),

  • legal proceedings” means civil or criminal proceedings in or before any court or tribunal,

  • Ministers” means the Scottish Ministers,

  • organisation” means—

    (a)

    a body corporate or unincorporated,

    (b)

    an individual who, in the course of a business, employs or otherwise gives work to other persons,

    (c)

    the governing body, trustees, or other person or body of persons responsible for the management of any of the following—

    (i)

    a school,

    (ii)

    a body listed in schedule 2 to the Further and Higher Education (Scotland) Act 2005 (asp 6),

    (iia)

    [F101a college of further education which is assigned to a regional strategic body by order made under section 7C(1) of that Act,]

    (iii)

    a hostel used mainly by pupils attending a school or body mentioned in paragraph (i) or (ii) respectively,

  • personnel supplier” means an organisation which carries on an employment agency or employment business,

  • F102...

  • police force” has the same meaning as in Part 5 of the 1997 Act,

  • “prescribed” (except where used in sections 18(4)(b) and 49(1)(a)) means prescribed in regulations made by Ministers (and “prescribe” is to be construed accordingly),

  • registrar of dentists and dental care professionals” means the registrar appointed under section 14 of the Dentists Act 1984 (c. 24),

  • Registrar of health professionals” means the Registrar appointed under Article 4 of the Heath Professions Order 2001 (S.I. 2002/254),

  • Registrar of nurses and midwives” means the Registrar appointed under Article 4 of the Nursing and Midwifery Order 2001 (S.I. 2002/253),

  • [F103 “registrar of pharmacists” means the registrar appointed under article 18 of the Pharmacy Order 2010, ]

  • school” has the same meaning as in the Education (Scotland) Act 1980 (c. 44),

  • F104...

  • Special Health Board” means a board constituted by order under section 2(1)(b) of the National Health Service (Scotland) Act 1978 (c. 29).

(2)For the purposes of this Act, Ministers must assume that an individual is doing regulated work for an organisation if they—

(a)have made a disclosure in respect of the individual, in relation to that type of regulated work, under section 52, 53 or 54,

(b)know that the disclosure was sought for the purposes of enabling or assisting the organisation to consider the scheme member's suitability to do, that type of regulated work for the organisation (or to be offered such work by the organisation), and

(c)have not been satisfied that the individual has not been engaged to do, or has stopped doing, that type of regulated work for the organisation.

(3)References in this Act to Ministers considering whether to list an individual are to be read as references to Ministers considering whether to list an individual in the children's list, in the adults' list or, as the case may be, in both lists in pursuance of section 10, 11, 12 or 13.

(4)References in this Act to Ministers' vetting, barring and disclosure functions are references to their functions under Parts 1 and 2 of this Act and Part 5 of the 1997 Act (other than functions relating to the making of regulations and orders).

(5)References in this Act to relevant police forces, and to the chief officers of those forces, are to be read in the same way as they are read in relation to an application under section 113B of the 1997 Act.

(6)The words and other expressions listed in schedule 5 are defined or otherwise explained for the purposes of this Act by the provisions indicated in that schedule.

Textual Amendments

F97Words in s. 97(1) inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 34(a); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F98Words in s. 97(1) substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 34(b); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

F99Words in s. 97(1) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(6)(a); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

F100Words in s. 97 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(n), 116(5)(a)

F102Words in s. 97(1) repealed (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), Sch. 7 para. 36(6)(b); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Commencement Information

I141S. 97(1) in force at 1.9.2007 by S.S.I. 2007/385, art. 2, Sch.

I142S. 97(2)-(6) in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Part 7 SFinal provisions

98Ancillary provisionS

(1)Ministers may by order make—

(a)such supplementary, incidental or consequential provision, or

(b)such transitional, transitory or saving provision,

as they consider appropriate for the purposes of, or in connection with, or for the purposes of giving full effect to, any provision of this Act.

(2)An order under subsection (1) may modify any enactment, instrument or document.

99Saving: disclosure of informationS

Nothing in this Act affects any power which exists apart from this Act to disclose information.

100Orders and regulationsS

(1)Any power of Ministers under this Act to make an order or regulations is exercisable by statutory instrument.

(2)Any such power includes power to make—

(a)such incidental, supplemental, consequential, transitional, transitory or saving provision as Ministers consider appropriate,

(b)different provision for different purposes.

(3)Unless subsection (4) makes contrary provision, a statutory instrument containing an order (other than an order made under section 101) or regulations made under this Act is subject to annulment in pursuance of a resolution of the Scottish Parliament.

(4)An order or regulations must not be made under any of the following provisions unless a draft of the statutory instrument containing the order or, as the case may be, the regulations has been laid before, and approved by a resolution of, the Scottish Parliament—

  • Section 14(3)

  • Section 32(2)

  • Section 35(2)

  • Section 87(1) or (2) or 98(1) (but only if the order contains provisions which add to, replace or omit any part of the text of this or any other Act)

  • Section 94(2)

  • Paragraph 28 of schedule 2 (except an order of the type mentioned in paragraph 15 of that schedule)

  • Paragraph 13 of schedule 3

101CommencementS

(1)This Part comes into force on Royal Assent.

(2)The provisions of Parts 1 to 6 come into force on such day as Ministers may by order appoint.

(3)Different days may be appointed for different purposes and for different areas.

102Short titleS

This Act may be cited as the Protection of Vulnerable Groups (Scotland) Act 2007.

SCHEDULE 1SRelevant offences

(introduced by section 32)

1An offence falls within this paragraph if it is—

(a)an offence under section 12 (cruelty to children under 16) of the Children and Young Persons (Scotland) Act 1937 (c. 37),

(b)an offence under section 15 (causing or allowing children under 16 to be used for begging or procuring alms) of that Act,

(c)an offence under section 22 (exposing a child under 7 to risk of burning) of that Act,

(d)an offence under section 33 (causing or allowing children under 17 to participate in performances which endanger life or limb) of that Act,

(e)an offence under section 52 (taking, distributing, showing, or publishing etc. any indecent photograph or pseudo-photograph of a child) of the Civic Government (Scotland) Act 1982 (c. 45),

(f)an offence under section 52A (possessing any indecent photograph or pseudo-photograph of a child) of that Act,

F105(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)an offence under section 3 (intercourse of person in position of trust with child under 16) of [F106the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39)],

[F107(i)an offence under section 5(2) (attempt to have intercourse with a girl under 13) of that Act,

(ia) an offence under section   5(3) (intercourse or attempt to have intercourse with a girl of over 13 and under 16) of that Act, ]

(j)an offence under section 6 (indecent behaviour towards girl between 12 and 16) of that Act,

(k)an offence under section 8 (abduction and unlawful detention of unmarried girl under 18) of that Act,

(l)an offence under section 9 (permitting girl under 16 to use premises for intercourse) of that Act,

(m)an offence under section 10 (causing or encouraging the seduction of, the prostitution of, unlawful intercourse with or the commission of an indecent assault on a girl under 16) of that Act,

(n)an offence under section 12 (allowing child who is 4 or over but under 16 to be in a brothel) of that Act,

(o)an offence under section 13(5)(c) (homosexual acts with a boy under 16) of that Act,

(p)an offence under section 3 (sexual activity of person in position of trust with child) of the Sexual Offences (Amendment) Act 2000 (c. 44),

(q)an offence under section 1 (meeting a child following certain preliminary contact) of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9),

(r)an offence under section 7 (breach of risk of sexual harm order or interim risk of sexual harm order) of that Act,

(s)an offence under section 9 (paying for sexual services of a child) of that Act,

(t)an offence under section 10 (causing or inciting provision by child of sexual services or child pornography) of that Act,

(u)an offence under section 11 (controlling a child providing sexual services or involved in pornography) of that Act,

(v)an offence under section 12 (arranging or facilitating provision by child of sexual services or child pornography) of that Act.

[F108(w) an offence under section   20(1) and (2)(a) (sexual assault on a young child (under 13) by penetration of the vagina, anus or mouth by any means) of the Sexual Offences (Scotland) Act 2009 (asp 9) where the conviction is in summary proceedings,

(x)an offence under section 20(1) and (2)(b) to (e) (sexual assault on a young child) of that Act,

(y)an offence under section 21 (causing a young child to participate in a sexual activity) of that Act,

(z)an offence under section 22 (causing a young child to be present during a sexual activity) of that Act,

(za)an offence under section 23 (causing a young child to look at a sexual image) of that Act,

(zb) an offence under section 24 (communicating indecently with a young child etc. ) of that Act,

(zc)an offence under section 25 (sexual exposure to a young child) of that Act,

(zd)an offence under section 26 (voyeurism towards a young child) of that Act,

(ze)an offence under section 28 (having intercourse with an older child) of that Act,

(zf)an offence under section 29 (engaging in penetrative sexual activity with or towards an older child) of that Act,

(zg)an offence under section 30 (engaging in sexual activity with or towards an older child) of that Act,

(zh)an offence under section 31 (causing an older child to participate in a sexual activity) of that Act,

(zi)an offence under section 32 (causing an older child to be present during a sexual activity) of that Act,

(zj)an offence under section 33 (causing an older child to look at a sexual image) of that Act,

(zk) an offence under section 34 (communicating indecently with an older child etc. ) of that Act,

(zl)an offence under section 35 (sexual exposure to an older child) of that Act,

(zm)an offence under section 36 (voyeurism towards an older child) of that Act,

(zn)an offence under section 42 (sexual abuse of trust) of that Act,

(zo)an offence in respect of attempting or conspiring to commit any offence referred to in this paragraph,

(zp)an offence in respect of aiding and abetting, inciting, counselling or procuring any offence referred to in this paragraph,

(zq)an offence in respect of attempting or conspiring to commit any offence listed in paragraphs 9, 10 or 11 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010,

(zr)an offence in respect of aiding and abetting, inciting, counselling or procuring any offence listed in paragraphs 9, 10 or 11 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010,

(zs)an offence which—

(i)is similar in nature to an offence referred to in this paragraph, and

(ii)was provided for in an enactment which is no longer in force or was an offence at common law which has been abolished by an enactment.]

Textual Amendments

F105Sch. 1 para. 1(g) omitted (28.2.2011 coming into force in accordance with art. 1) by virtue of The Protection of Vulnerable Groups (Scotland) Act 2007 (Relevant Offences) (Modification) Order 2010 (S.S.I. 2010/246), arts. 1, 3

F106Words in Sch. 1 para. 1(h) substituted (28.2.2011 coming into force in accordance with art. 1) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Relevant Offences) (Modification) Order 2010 (S.S.I. 2010/246), arts. 1, 4

F107Sch. 1 para. 1(i)(ia) substituted for Sch. 1 para. 1(i) (28.2.2011 coming into force in accordance with art. 1) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Relevant Offences) (Modification) Order 2010 (S.S.I. 2010/246), arts. 1, 5

F108Sch. 1 para. 1(w)(zs) inserted (28.2.2011 coming into force in accordance with art. 1) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Relevant Offences) (Modification) Order 2010 (S.S.I. 2010/246), arts. 1, 6

Commencement Information

I143Sch. 1 para. 1 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

2An individual falls within this paragraph if the individual—

[F109(za)commits an offence of culpable homicide in relation to a child,]

(a)commits an offence under section 4(3) (offering or supplying controlled drugs) of the Misuse of Drugs Act 1971 (c. 38) in relation to a child,

[F110(aa)commits an offence under section 170 (penalty for fraudulent evasion of duty etc.) of the Customs and Excise Management Act 1979 (c.2) in relation to goods prohibited to be imported under section 42 (indecent or obscene articles) of the Customs Consolidation Act 1876 (c.36), if the prohibited goods included indecent photographs of persons under 16,]

(b)commits an offence under section 1 (incest) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) by having sexual intercourse with a child,

[F111(ba)commits an offence under section 2 (intercourse with a step-child) of that Act in relation to a child,]

(c)commits an offence under section 7 (procuring unlawful intercourse etc.) of that Act in relation to a child,

(d)commits an offence under section 11 (trading in prostitution and brothel-keeping) of that Act in relation to a child,

(e)commits an offence under section 13(6) (procuring commission of homosexual act between males) of that Act by procuring, or attempting to procure, a child to commit a homosexual act,

[F112(ea)commits an offence under section 83 (offence of ill treatment and wilful neglect) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) in relation to a child,

(eb)commits an offence under section 311(1) and (2)(a) (non‑consensual sexual acts) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) in relation to a child where the conviction is in summary proceedings,

(ec)commits an offence under section 311(1) and 2(b) (non‑consensual sexual acts) of that Act in relation to a child,

(ed)commits an offence under section 313 (persons providing core services: sexual offences) of that Act in relation to a child,

(ee)commits an offence under section 315 (ill treatment and wilful neglect of mentally disordered person) of that Act in relation to a child,

(ef)commits an offence under section 4 (trafficking people for exploitation) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19) in relation to a child,

(eg)commits an offence under section 1 (offence of female genital mutilation) of the Prohibition of Female Genital Mutilation (Scotland) Act 2005 (asp 8) in relation to a child,

(eh)commits an offence under section 3 (aiding and abetting female genital mutilation) of that Act in relation to a child,

(ei)commits an offence under section 3(1) and 2(a) (sexual assault by penetration of the vagina, anus or mouth by any means) of the Sexual Offences (Scotland) Act 2009 (asp 9) in relation to a child where the conviction is in summary proceedings,

(ej)commits an offence under section 3(1) and (2)(b) to (e) (sexual assault) of that Act in relation to a child,

(ek)commits an offence under section 4 (sexual coercion) of that Act in relation to a child,

(el)commits an offence under section 5 (coercing a person into being present during a sexual activity) of that Act in relation to a child,

(em)commits an offence under section 6 (coercing a person into looking at a sexual image) of that Act in relation to a child,

(en)commits an offence under section 7 (communicating indecently etc.) of that Act in relation to a child,

(eo)commits an offence under section 8 (sexual exposure) of that Act in relation to a child,

(ep)commits an offence under section 9 (voyeurism) of that Act in relation to a child,

(eq)commits an offence under section 11 (administering a substance for sexual purposes) of that Act in relation to a child,

(er)commits an offence under section 46 (sexual abuse of trust of a mentally disordered person) of that Act in relation to a child.]

(f)commits any other offence which caused, or was intended to cause, bodily injury to a child,

(g)commits any other offence by engaging in lewd, indecent or libidinous practice or behaviour towards a child.

[F113(h)commits an offence in respect of attempting or conspiring to commit any offence referred to in this paragraph,

(i)commits an offence in respect of aiding and abetting, inciting, counselling or procuring any offence referred to in this paragraph, other than an offence referred to in sub-paragraph (eh),

(j)commits an offence in respect of attempting or conspiring to commit any offence listed in paragraphs 1, 2, 3, 5, 6, 7 or 8 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010 in relation to a child,

(k)commits an offence in respect of aiding and abetting, inciting, counselling or procuring any offence listed in paragraphs 1, 2, 3, 5, 6, 7 or 8 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010 in relation to a child,

(l)commits an offence in relation to a child which—

(i)is similar in nature to an offence referred to in this paragraph, and

(ii)was provided for in an enactment which is no longer in force or was an offence at common law which has been abolished by an enactment.]

SCHEDULE 2SRegulated work with children

(introduced by section 91)

Part 1SPreliminary

Regulated work with childrenS

1Regulated work with children is [F114 work done in Scotland ] in—

(a)a position whose normal duties include carrying out an activity mentioned in Part 2,

[F115(b)a position—

(i)which is not a position mentioned in sub-paragraph (a),

(ii)whose normal duties include work in an establishment mentioned in Part 3, and

(iii)which gives the holder of the position, when doing anything permitted or required in connection with the position, the opportunity to have unsupervised contact with children,]

(c)a position mentioned in Part 4, or

(d)a position whose normal duties include the day to day supervision or management of an individual doing regulated work with children by virtue of sub-paragraph (a) or (b).

Textual Amendments

F114Words in Sch. 2 para. 1 substituted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 12

Commencement Information

I145Sch. 2 para. 1 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Definitions in relation to unsupervised contact with childrenS

[F1161A.In this schedule—

  • “unsupervised contact with children” means contact with children in the absence of—

    (a)

    a responsible person,

    (b)

    a person carrying out an activity mentioned in paragraph   3, 4 or 5, or

    (c)

    an individual who, in relation to a child, has agreed to supervise the contact under arrangements made by the child’s parent or guardian or any person aged 18 or over with whom the child lives in the course of a family or personal relationship,

  • “responsible person” means, in relation to a child, any of the following persons—

    (a)

    the child’s parent or guardian,

    (b)

    any person aged 18 or over with whom the child lives,

    (c)

    the person in charge of any establishment mentioned in Part   3 in which the child is accommodated, is a patient or receives education (and any person acting on behalf of such a person),

    (d)

    a person who provides day care of children, within the meaning of [F117schedule 12 to the 2010 Act],

    (e)

    any person holding a position mentioned in Part   4, and

    (f)

    any person holding a position in a children’s charity, within the meaning of paragraph   27,

  • “family relationship” and “personal relationship” have the meanings given in section   95. ]

Exceptions relating to children's employment and workS

2Work which would be regulated work with children by virtue of any of paragraphs 3 to 7 is not, despite those provisions, regulated work with children if—

(a)the activity concerned is carried out in relation to children aged 16 or 17 in the course of the children's work, or

(b)in the case of the activities referred to in paragraphs 5 and 6, the activity is carried out in relation to children under the age of 16 in the course of the children's employment.

Commencement Information

I146Sch. 2 para. 2 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Application of sections 35 and 36 to host parentingS

[F1182A.Work which—

(a)consists of being a host parent (see paragraph 11A), but

(b)does not include carrying out any other activity mentioned in Part 2 otherwise than in connection with being a host parent,

is not regulated work with children for the purposes of sections 35 and 36.]

Part 2SActivities

Caring for childrenS

3Caring for children (except caring for children which is merely incidental to caring for individuals who are not children).

Commencement Information

I147Sch. 2 para. 3 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Teaching, instructing, training or supervising childrenS

4Teaching, instructing, training or supervising children (except teaching, instructing, or training children which is merely incidental to teaching, instructing, or training individuals who are not children).

Commencement Information

I148Sch. 2 para. 4 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Being in sole charge of childrenS

5Being in sole charge of children.

Commencement Information

I149Sch. 2 para. 5 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Unsupervised contact with childrenS

[F1196Unsupervised contact with children under arrangements made by a responsible person.]

Textual Amendments

Commencement Information

I150Sch. 2 para. 6 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Providing advice or guidance to childrenS

7Providing advice or guidance to a child or to particular children which relates to physical or emotional well-being, education or training (except providing advice or guidance to a child or to particular children which is merely incidental to providing advice or guidance to individuals who are not children).

Commencement Information

I151Sch. 2 para. 7 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Moderating certain interactive communication servicesS

8Moderating a public electronic interactive communication service which is intended for use wholly or mainly by children. A person moderates such a service if, for the purpose of protecting children, the person has any function relating to—

(a)monitoring the content of matter which forms any part of the service,

(b)removing matter from, or preventing the addition of matter to, the service, or

(c)controlling access to, or use of, the service.

But a person only moderates such a service as mentioned in sub-paragraph (b) or (c) if the person has—

(i)access to the content of the matter, or

(ii)contact with users of the service.

Commencement Information

I152Sch. 2 para. 8 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Provision of care home servicesS

F1209Providing, or working for an organisation which provides, a care home service which is provided exclusively or mainly for children (but only if doing anything permitted or required in connection with the position gives the holder of the position the opportunity to have contact with children).“Care home service” has the same meaning as in [F120 schedule 12 to the 2010 Act ].

Textual Amendments

F120Words in Sch. 2 para. 9 substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 35(b); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

Commencement Information

I153Sch. 2 para. 9 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Provision of independent health care servicesS

10Providing, or working for an organisation which provides, an independent health care service which is provided exclusively or mainly for children (but only if doing anything permitted or required in connection with the position gives the holder of the position the opportunity to have contact with children).“Independent health care service” has the same meaning as in [F121 section 10F of the National Health Service (Scotland) Act 1978 (c. 29)].

Textual Amendments

F121Words in Sch. 2 para. 10 substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(e); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

Commencement Information

I154Sch. 2 para. 10 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Work on day care premisesS

11Work on any part of day care premises at times when children are being looked after in that part.“Day care premises” means premises at which day care of children, within the meaning of [F122 schedule 12 to the 2010 Act ], is provided.

Textual Amendments

F122Words in Sch. 2 para. 11 substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 35(c); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2011/122, art. 2, Sch.

Commencement Information

I155Sch. 2 para. 11 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Being a host parentS

[F12311A.Being a host parent.

A “host parent” is a person—

(a)who provides overnight accommodation for, or otherwise looks after, a child (as if the child were part of that person’s family) in connection with an organised activity in which the child is participating, but

(b)who is not responsible for looking after the child when the child is participating in that activity.]

Part 3SEstablishments

Children's detention institutionS

12An institution which is exclusively or mainly for the detention of children.“Detention” means detention by virtue of an order of a court or under an enactment.

Commencement Information

I156Sch. 2 para. 12 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Children's hospitalS

13A hospital which is exclusively or mainly for the reception and treatment of children.“Hospital” has the meaning given by section 108(1) (interpretation) of the National Health Service (Scotland) Act 1978 (c. 29).

Commencement Information

I157Sch. 2 para. 13 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Educational institutions etc.S

14A school.

Commencement Information

I158Sch. 2 para. 14 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

15A further education institution.“Further education institution” means a body listed under the heading “Institutions formerly eligible for funding by the Scottish Further Education Funding Council” in schedule 2 to the Further and Higher Education (Scotland) Act 2005 (asp 6) [F124 or a college of further education which is assigned to a regional strategic body by order made under section 7C(1) of that Act ].

Ministers may by order amend the definition of “further education institution” so as to include or exclude bodies listed in that schedule.

Textual Amendments

Commencement Information

I159Sch. 2 para. 15 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

16A hostel used mainly by pupils attending a school or institution mentioned in paragraph 14 or 15 respectively.

Commencement Information

I160Sch. 2 para. 16 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Children's homeS

17A home which is exclusively or mainly for children and

[F125(1) provided by a council under—

(a)section 59 (provision by councils of residential and other establishments) of the Social Work (Scotland) Act 1968 (c. 49), or

(b)section 25 (provision of care and support services by local authority) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).] [F126or

(2)provided or secured by a person to whom a function conferred by a provision mentioned in sub-paragraph (1)(a) or (b) is delegated by a council in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014]

Textual Amendments

Commencement Information

I161Sch. 2 para. 17 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Part 4SPositions

Manager of educational institutions etc.S

18Manager, or member of a governing body, body of trustees or other body responsible for the management, of a school, further education institution or hostel mentioned in paragraphs 14 to 16 (but not a member of a council).

Commencement Information

I162Sch. 2 para. 18 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Member of council committeeS

19Member of—

(a)a committee (including joint committee) of a council which is concerned with the provision of education, accommodation, social services or health care services to children,

(b)a sub-committee which discharges any functions of any such committee.

Commencement Information

I163Sch. 2 para. 19 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Member of children's panel etc.S

Information held by regulated work providersS

20(1)Ministers may require a person falling within subsection (2) to provide them with any information held by the person which Ministers think might be relevant for the purpose of enabling or assisting them to decide whether to list an individual.

(2)A person falls within this subsection if—

(a)the individual is doing, or has done, regulated work for the person,

(b)the individual has been offered regulated work by the person (whether or not the individual subsequently did the work),

(c)it is an employment agency which has offered or supplied, or made arrangements with a view to offering or supplying, the individual to another person for regulated work (whether or not the arrangements are still in place), or

(d)it is an employment business which employs or has employed the individual to do regulated work for another person.

(3)A person who fails, without reasonable excuse, to comply with a requirement made under subsection (1) is guilty of an offence and liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

Commencement Information

I36S. 20 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

[F12720A.National Convener of Children’s Hearings Scotland.

20B.Principal Reporter.]

Chief social work officerS

21Chief social work officer of a council.

Commencement Information

I164Sch. 2 para. 21 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Chief education officerS

22Chief education officer (however called) of a council.

Commencement Information

I165Sch. 2 para. 22 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Commissioner for Children and Young People in ScotlandS

23Commissioner for Children and Young People in Scotland.

Commencement Information

I166Sch. 2 para. 23 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

24Member of that Commissioner's staff.

Commencement Information

I167Sch. 2 para. 24 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Registrar of Independent Schools in ScotlandS

25Registrar of Independent Schools in Scotland.

Commencement Information

I168Sch. 2 para. 25 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

FosteringS

26Foster carer.

Commencement Information

I169Sch. 2 para. 26 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

[F128Charity trustee of a children’s charity.]S

Textual Amendments

27Children’s charity” means a charity whose—

(a)main purpose is to provide benefits for children, and

(b)principal means of delivery of those benefits is by its workers doing regulated work with children.

An individual works for a charity if the individual works under any arrangements made by the charity.

Commencement Information

I170Sch. 2 para. 27 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Part 5SGeneral

Power to amend scheduleS

28Ministers may by order modify this schedule as they think appropriate.

Commencement Information

I171Sch. 2 para. 28 in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I172Sch. 2 para. 28 in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

29An order under paragraph 28 may disapply or otherwise modify the application of sections 34 to 37 in relation to particular kinds of regulated work with children.

Commencement Information

I173Sch. 2 para. 29 in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I174Sch. 2 para. 29 in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

SCHEDULE 3SRegulated work with adults

(introduced by section 91)

Prospective

Part 1 SPreliminary

Regulated work with adultsS

1Regulated work with adults is [F129 work done in Scotland ] in—

(a)a position whose normal duties include carrying out an activity mentioned in Part 2,

[F130(b)a position—

(i) which is not a position mentioned in sub-paragraph   (a),

(ii) whose normal duties include work in an establishment mentioned in Part   3,

(iii)which gives the holder of the position, when doing anything permitted or required in connection with the position, the opportunity to have unsupervised contact with protected adults, and

(iv)where contact with protected adults, when the holder of the position is doing anything permitted or required in connection with the position, is more than incidental,]

(c)a position mentioned in Part 4, or

(d)a position whose normal duties include the day to day supervision or management of an individual doing regulated work with adults by virtue of sub-paragraph (a) or (b).

[F131 " Unsupervised contact with protected adults ” means contact with protected adults in the absence of an individual doing regulated work within the establishment where the contact takes place. ]

Textual Amendments

F129Words in Sch. 3 para. 1 substituted (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 13

F131Words in Sch. 3 para. 1 inserted (28.2.2011 coming into force in accordance with art. 1) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Modification of Regulated Work with Adults) Order 2010 (S.S.I. 2010/245), arts. 1, 3(b)

Part 2 SActivities

Caring for adultsS

2Caring for protected adults (except caring for protected adults under the age of 18 which is merely incidental to caring for children generally).

Commencement Information

I175Sch. 3 para. 2 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Prospective

Teaching, instructing, training and supervising adultsS

3Teaching, instructing, training or supervising protected adults (except teaching, instructing, training or supervising protected adults which is merely incidental to teaching, instructing, training or supervising individuals who are not protected adults).

Prospective

Being in sole charge of adultsS

4Being in sole charge of protected adults (except being in sole charge of protected adults which is merely incidental to being in sole charge of individuals who are not protected adults).

Providing assistance, advice or guidance to adultsS

5Providing assistance, advice or guidance to a protected adult or particular protected adults which relates to physical or emotional well-being, education or training (except providing assistance, advice or guidance to a protected adult or protected adults which is merely incidental to providing assistance, advice or guidance to individuals who are not protected adults).

Commencement Information

I176Sch. 3 para. 5 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Provision of care home servicesS

F1326. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F132Sch. 3 para. 6 omitted (28.2.2011 coming into force in accordance with art. 1) by virtue of The Protection of Vulnerable Groups (Scotland) Act 2007 (Modification of Regulated Work with Adults) Order 2010 (S.S.I. 2010/245), arts. 1, 4

Inspecting care services on behalf of the [F133 Social Care and Social Work Improvement Scotland ] [F134 and Healthcare Improvement Scotland ]S

Textual Amendments

F133Words in Sch. 3 para. 7 crossheading substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 36(c); S.S.I. 2010/321, art. 3, Sch.

F134Words in Sch. 3 para. 7 crossheading added (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(g); S.S.I. 2010/321, art. 3, Sch.

7Inspecting adult care services (including inspecting any premises used for the purposes of providing such services) in pursuance of [F135 section 10J or 10M of the National Health Service (Scotland) Act 1978 (c. 29) or ] [F136Part 5 of the 2010 Act ].

  • An “adult care service” is—

    (a)

    a support service,

    (b)

    an adult placement service,

    (c)

    a care home service,

    (d)

    a housing support service, or

    (e)

    an independent health care service which provides services of the type prescribed under section 94(1)(b),

    not provided mainly or exclusively to children.

  • “Support service”, “adult placement service”, “care home service”, [F137 and ] “housing support service” F138... have the same meanings as in [F139 schedule 12 to the 2010 Act ] [F140; and “independent health care service” has the same meaning as in section 10F of the National Health Service (Scotland) Act 1978. ”].

Textual Amendments

F135Words in Sch. 3 para. 7 inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(f)(i); S.S.I. 2010/321, art. 3, Sch.

F136Words in Sch. 3 para. 7 substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 36(b)(i); S.S.I. 2010/321, art. 3, Sch.

F137Word in Sch. 3 para. 7 inserted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 36(b)(ii); S.S.I. 2010/321, art. 3, Sch.

F138Words in Sch. 3 para. 7 repealed (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(f)(ii); S.S.I. 2010/321, art. 3, Sch.

F139Words in Sch. 3 para. 7 substituted (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 14 para. 36(b)(iii); S.S.I. 2010/321, art. 3, Sch.

F140Words in Sch. 3 para. 7 added (1.10.2010 for specified purposes, 1.4.2011 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 17 para. 36(f)(iii); S.S.I. 2010/321, art. 3, Sch.

Commencement Information

I177Sch. 3 para. 7 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Part 3 SEstablishments

Care homeS

8A care home.“Care home” means accommodation occupied mainly or exclusively by individuals aged 16 or over which is provided by an organisation carrying on a care home service (within the meaning of [F141schedule 12 to the 2010 Act]).

Textual Amendments

Commencement Information

I178Sch. 3 para. 8 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Residential establishment or accommodationS

9A residential establishment or accommodation occupied exclusively or mainly by individuals aged 16 or over which is provided by, or the provision of which is secured by,

[F142(1)a council under—

(a)the Social Work (Scotland) Act 1968 (c. 49), or

(b)section 25 (provision of care and support services by local authority) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).][F143, or

(2)a person to whom a function conferred by a provision mentioned in sub-paragraph (1)(a) or (b) is delegated by a council in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014.]

Textual Amendments

Commencement Information

I179Sch. 3 para. 9 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Part 4 SPositions

Member of council committeeS

10Member of a committee (including joint committee) of a council which is concerned with the provision of education, accommodation, social services or health care services to protected adults. Any reference to a committee includes a reference to any sub-committee which discharges any functions of that committee.

Commencement Information

I180Sch. 3 para. 10 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Chief social work officerS

11Chief social work officer of a council.

Commencement Information

I181Sch. 3 para. 11 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Charity trusteeS

[F14412Charity trustee of a charity whose—

(a)main purpose is to provide benefits for protected adults, and

(b)principal means of delivery of those benefits is by its workers doing regulated work with adults.

An individual works for a charity if the individual works under any arrangements made by the charity.]

Textual Amendments

Commencement Information

I182Sch. 3 para. 12 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Part 5 SGeneral

Power to amend scheduleS

13Ministers may by order modify this schedule as they think appropriate.

Commencement Information

I183Sch. 3 para. 13 in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I184Sch. 3 para. 13 in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a)

14An order under paragraph 13 may disapply or otherwise modify the application of sections 34 to 37 in relation to particular kinds of regulated work with adults.

Commencement Information

I185Sch. 3 para. 14 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

SCHEDULE 4SMinor and consequential amendments and repeals

(introduced by section 88)

Teaching Council (Scotland) Act 1965 (c. 19)S

F1451. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1462. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F146Sch. 4 para. 2 repealed (18.4.2010 for specified purposes, coming into force in accordance with art. 1(2)) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Order 2010 (S.S.I. 2010/446), arts. 1(2), 21

Commencement Information

I186Sch. 4 para. 2 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

F1473. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1484. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Education (Scotland) Act 1980 (c. 44)S

5The Education (Scotland) Act 1980 is amended as follows.

Commencement Information

I187Sch. 4 para. 5 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

6In section 98A—

(a)in subsection (5)(a)(ii), for “disqualified from working with children” substitute “ barred from regulated work with children ”,

(b)in subsection (6), for the definition of “disqualified from working with children” substitute—

barred from regulated work with children” shall be construed in accordance with the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14);.

Commencement Information

I188Sch. 4 para. 6 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

7In section 99(1A)—

(a)in paragraph (g)(ii), for “disqualified from working with children” substitute “ barred from regulated work with children ”,

(b)in paragraph (h)(ii), for “disqualified from working with children” substitute “ barred from regulated work with children ”.

Commencement Information

I189Sch. 4 para. 7 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

8In section 135(1)—

(a)after the definition of “attendance order” insert—

barred from regulated work with children” has the meaning given by section 98A(6) of this Act;,

(b)the definition of “disqualified from working with children” is repealed.

Commencement Information

I190Sch. 4 para. 8 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Foster Children (Scotland) Act 1984 (c. 56)S

9The Foster Children (Scotland) Act 1984 is amended as follows.

Commencement Information

I191Sch. 4 para. 9 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

10In section 7, after subsection (2) insert—

(3)A person who lives in the same premises as a barred person shall not maintain a foster child.

(4)In subsection (3) (and in section 15(2A)), “barred person” means a person who is barred from regulated work with children (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14))..

Commencement Information

I192Sch. 4 para. 10 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

11In section 15, after subsection (2) insert—

(2A)A person shall not be guilty of an offence under subsection (1)(c) above in relation to a contravention of section 7(3) if the person proves that he did not know, and had no reasonable ground for believing, that any other person living in the premises in which the person lives was a barred person..

Commencement Information

I193Sch. 4 para. 11 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

12In section 21, before the definition of “care home service” insert—

barred person” has the meaning given by section 7(4);.

Commencement Information

I194Sch. 4 para. 12 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a)

Criminal Procedure (Scotland) Act 1995 (c. 46)S

13The 1995 Act is amended as follows.

Commencement Information

I195Sch. 4 para. 13 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

14In section 106(1)—

(a)paragraphs (db) and (dc) are repealed,

(b)in paragraph (f), sub-paragraphs (ii) and (iii) are repealed.

Commencement Information

I196Sch. 4 para. 14 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

15In section 110(1)(a), the words “, the proposal to make a reference was made” are repealed.

Commencement Information

I197Sch. 4 para. 15 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

16Section 111(3) is repealed.

Commencement Information

I198Sch. 4 para. 16 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

17In section 116, for subsection (2) substitute—

(2)A person who has appealed against both conviction and sentence (or, as the case may be, against both conviction and a decision mentioned in section 106(1)(bb) or both conviction and disposal and order) may abandon the appeal in so far as it is against conviction and may proceed with it against sentence (or, as the case may be, decision, disposal or order) alone..

Commencement Information

I199Sch. 4 para. 17 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

18In section 118—

(a)in subsection (4), for the words “106(1)(ba), (bb), (c), (d), (da), (dc), (e) or (f)” substitute “ 106(1)(ba), (bb), (c), (d), (da), (e) or (f) ”,

(b)subsection (4AA) is repealed,

(c)in subsection (7)—

(i)the words “or, as the case may be,” at the end of paragraph (a), and

(ii)paragraph (b),

are repealed.

Commencement Information

I200Sch. 4 para. 18 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

19In section 121A(1), the words “(other than an appeal under section 106(1)(db) or (dc))” are repealed.

Commencement Information

I201Sch. 4 para. 19 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

20In section 173(2), the words “or (cb)” are repealed.

Commencement Information

I202Sch. 4 para. 20 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

21In section 175—

(a)in subsection (2)—

(i)paragraph (cb)(but not the word “or” which appears immediately after that paragraph) is repealed,

(ii)in paragraph (d), sub-paragraphs (ii) and (iii) are repealed,

(b)in subsection (8), for the words from “under” to the end of paragraph (c) substitute “ against both conviction and sentence may abandon the appeal in so far as it is against conviction and may proceed with it against sentence alone, ”,

(c)in subsection (9), the words “or (cb)” are repealed.

Commencement Information

I203Sch. 4 para. 21 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

22Section 181(4) is repealed.

Commencement Information

I204Sch. 4 para. 22 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

23In section 186—

(a)the words “or (cb)”, where they appear in subsections (1), (2), (9) and (10), are repealed,

(b)in subsection (2)(a)—

(i)at the end of sub-paragraph (i) insert “ or ”,

(ii)sub-paragraph (iii)(and the word “or” which immediately precedes it) are repealed.

Commencement Information

I205Sch. 4 para. 23 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

24In section 187(1), the words “or (cb)” are repealed.

Commencement Information

I206Sch. 4 para. 24 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

25In section 189—

(a)subsection (2A) is repealed,

(b)in subsection (7)(b)—

(i)the words “or, as the case may be,” at the end of paragraph (a), and

(ii)paragraph (b),

are repealed.

Commencement Information

I207Sch. 4 para. 25 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

26In section 193A(1), the words “(other than by way of an appeal under section 175(2)(cb) of this Act against a reference only)” are repealed.

Commencement Information

I208Sch. 4 para. 26 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 5(1))

Police Act 1997 (c. 50)S

27Part 5 of the 1997 Act is amended as follows.

Commencement Information

I209Sch. 4 para. 27 in force at 11.1.2008 for specified purposes by S.S.I. 2007/564, art. 2, Sch.

I210Sch. 4 para. 27 in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a) (with art. 3)

28In section 113A, after subsection (5) insert—

(5A)The Scottish Ministers need not issue a criminal record certificate under subsection (1) if the statement accompanying the application states that the purpose for which the certificate is required is the purpose mentioned in disclosure condition C (set out in section 55 of the Protection of Vulnerable Groups (Scotland) Act 2007) (asp 14))..

Commencement Information

I211Sch. 4 para. 28 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 3)

29After section 113B insert—

113CASuitability information relating to children

(1)In such cases as are prescribed, an enhanced criminal record certificate must also include suitability information relating to children.

(2)Suitability information relating to children is—

(a)whether the applicant is barred from regulated work with children;

(b)if the applicant is barred from such activity, such details as are prescribed of the circumstances in which the applicant became barred;

(c)whether the Scottish Ministers are considering whether to list the individual in the children's list;

(d)whether the Independent Barring Board is considering whether to include the applicant in the children's barred list in pursuance of paragraph 3 or 5 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

113CBSuitability information relating to protected adults

(1)In such cases as are prescribed, an enhanced criminal record certificate must also include suitability information relating to protected adults.

(2)Suitability information relating to protected adults is—

(a)whether the applicant is barred from regulated work with adults;

(b)if the applicant is barred from such activity, such details as are prescribed of the circumstances in which the applicant became barred;

(c)whether the Scottish Ministers are considering whether to list the individual in the adults' list;

(d)whether the Independent Barring Board is considering whether to include the applicant in the adults' barred list in pursuance of paragraph 9 or 11 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.

113CCSuitability information: supplementary

(1)The Scottish Ministers may by order made by statutory instrument—

(a)amend section 113CA for the purpose of altering the meaning of suitability information relating to children;

(b)amend section 113CB for the purpose of altering the meaning of suitability information relating to protected adults.

(2)Such an order is subject to annulment in pursuance of a resolution of the Scottish Parliament.

(3)Expressions used in sections 113CA and 113CB and in the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14) have the same meaning in those sections as in that Act, except that “prescribed” must be construed in accordance with section 125 of this Act..

Commencement Information

I212Sch. 4 para. 29 in force at 18.4.2010 for specified purposes by S.S.I. 2010/133, art. 2, Sch.

I213Sch. 4 para. 29 in force at 28.2.2011 in so far as not already in force by S.S.I. 2011/157, art. 2(a) (with art. 3)

30Sections 113C to 113F are repealed.

Commencement Information

I214Sch. 4 para. 30 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 3)

31In section 114—

(a)in subsection (2), for “a Minister of the Crown” substitute “ a person mentioned in subsection (2A) ”,

(b)after subsection (2) insert—

(2A)Any of the following persons may make a statement for the purposes of subsection (2)—

(a)a Minister of the Crown;

(b)a member of the Scottish Executive;

(c)any other office-holder in the Scottish Administration; or

(d)a nominee of any person mentioned in paragraphs (a) to (c).,

(c)in subsection (3), for “Sections 113A(3) to (6) and 113C to 113F” substitute “ Section 113A(3) to (6) ”.

Commencement Information

I215Sch. 4 para. 31 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 3)

32In section 116—

(a)in subsection (2), for “a Minister of the Crown, or a person nominated by a Minister of the Crown,” substitute “ a person mentioned in subsection (2A) ”,

(b)after subsection (2) insert—

(2A)Any of the following persons may make a statement for the purposes of subsection (2)—

(a)a Minister of the Crown;

(b)a member of the Scottish Executive;

(c)any other office-holder in the Scottish Administration; or

(d)a nominee of any person mentioned in paragraphs (a) to (c).,

(c)in subsection (3), for “113C to 113F” substitute “ 113CA to 113CC ”.

Commencement Information

I216Sch. 4 para. 32 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 3)

33In section 117, after subsection (2) insert—

(3)An application under this section may, in particular, request a review of any information contained in a certificate by virtue of section 113B(4).

(4)The Scottish Ministers, on receiving such a request, must ask the chief officer of the relevant police force who provided that information to reconsider whether the chief officer still thinks that the information concerned might be relevant for the purpose in respect of which it was requested..

Commencement Information

I217Sch. 4 para. 33 in force at 11.1.2008 by S.S.I. 2007/564, art. 2, Sch.

34In section 118—

(a)in subsection (2A)(a), for “United Kingdom Passport Agency” substitute “ Identity and Passport Service ”,

(b)after subsection (2A) insert—

(2B)The Scottish Ministers may require an applicant to have fingerprints taken under subsection (2) only if they are not satisfied by other evidence provided under subsection (1) as to the applicant's identity.,

(c)for subsection (3) substitute—

(3)The Scottish Ministers must arrange the destruction of any fingerprints taken in pursuance of subsection (2) as soon as reasonably practicable after they have been used for the purpose mentioned in subsection (1)..

Commencement Information

I218Sch. 4 para. 34 in force at 11.1.2008 by S.S.I. 2007/564, art. 2, Sch.

35In section 119A(2), the words from “; and” to the end of the subsection are repealed.

Commencement Information

I219Sch. 4 para. 35 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 3)

36In section 120(5)(b) for the words from “countersign” to “113B” substitute

“(i)countersign applications under section 113A or 113B; or

(ii)make declarations in relation to disclosure requests made under section 52 or 53 of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14),.

Commencement Information

I220Sch. 4 para. 36 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 4)

37In section 120A—

(a)in subsection (3)(b), for “included in any list mentioned in section 113C(3) or 113D(3)” substitute “ barred from regulated work with children or adults (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14)) ”,

(b)in subsection (4)(b)(iii), after “applications” insert “ , or the making of declarations, ”.

Commencement Information

I221Sch. 4 para. 37 in force at 28.2.2011 by S.S.I. 2011/157, art. 2(a) (with art. 4)

38Section 121 is repealed.

Commencement Information

I222Sch. 4 para. 38 in force at 11.1.2008 by S.S.I. 2007/564, art. 2, Sch.

39In section 122—

(a)in subsection (3)—

(i)after “113B” insert “ , or make a disclosure under section 52 or 53 of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14), ”,

(ii)after “application” insert “ or, as the case may be, made the declaration in relation to the disclosure request ”,

(iii)after “countersigned”, where it appears in paragraph (b), insert “ or, as the case may be, made the declaration ”,

(b)in subsection (4)(b)—

(i)the words after “person” become sub-paragraph (i), and

(ii)after that new sub-paragraph insert ; or

(ii)has made or is likely to make a declaration in relation to a disclosure request made under section 52 or 53 of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14).

Commencement Information

I223Sch. 4 para. 39 in force at 28.2.2011 by