Draft Order laid before the Scottish Parliament under section 10(2) of the Rehabilitation of Offenders Act 1974, for approval by resolution of the Scottish Parliament.
2012 No.
The Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2012
Made
Coming into force
The Scottish Ministers make the following Order in exercise of the powers conferred by sections 4(4), 7(4) and 10(1) of, and paragraph 6 of Schedule 3 to, the Rehabilitation of Offenders Act 19741 and all other powers enabling them to do so.
In accordance with section 10(2) of that Act, a draft of this Order has been laid before and approved by resolution of the Scottish Parliament.
Citation, commencement and extent1
1
This Order may be cited as the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2012, and comes into force the day after the day on which it is made.
2
This Order extends to Scotland and, in so far as it extends beyond Scotland, it does so only as a matter of Scots law.
Interpretation2
1
In this Order—
“the 2000 Act” means the Financial Services and Markets Act 20002;
“the 2001 Act” means the Regulation of Care (Scotland) Act 20013;
“the 2007 Act” means the Protection of Vulnerable Groups (Scotland) Act 20074;
“the 2010 Act” means the Public Services Reform (Scotland) Act 20105;
“the Act” means the Rehabilitation of Offenders Act 1974;
“actuary” means a member of the Institute and Faculty of Actuaries;
“accountant” means a member of—
- a
the Association of Certified Accountants;
- b
the Institute of Chartered Accountants in Scotland;
- c
the Institute of Chartered Accountants in England and Wales;
- d
the Chartered Institute of Public Finance Accountants; or
- e
the Chartered Institute of Management Accountants;
- a
“adopt” includes any arrangements to adopt a child, including arrangements for adoption where the proposed adopter is a relative of the child, whether under the Adoption and Children (Scotland) Act 20076 or the Adoptions with a Foreign Element (Scotland) Regulations 20097;
“approved regulator” has the meaning given in Part 2 of the Legal Services (Scotland) Act 20108;
“associate”, in relation to a person (“A”), means someone who is a controller, director or a manager of A or, where A is a partnership, any partner of A;
“authorised electronic money institution” has the meaning given by regulation 2(1) of the Electronic Money Regulations 20119;
“authorised payment institution” has the meaning given by regulation 2(1) of the Payment Services Regulations 200910;
“care service” has the meaning given in section 47 of the 2010 Act;
“collective investment scheme” has the meaning given in section 235 of the 2000 Act;
“the competent authority for listing” means the competent authority for the purposes of Part I of the 2000 Act (listing);
“contracting authority” means a contracting authority within the meaning of Article 1(9) of Directive 2004/18/EC;
“contracting entity” means a contracting entity within the meaning of Article 2(2) of Directive 2004/17/EC;
“controller” has the meaning given in section 422 of the 2000 Act11;
“Council of Lloyd’s” means the council constituted by section 3 of the Lloyd’s Act 198212;
“Directive 2004/17/EC” means Directive 2004/17/EC of the European Parliament and of the Council of 31st March 200413; and
“Directive 2004/18/EC” means Directive 2004/18/EC of the European Parliament and of the Council of 31st March 200414;
“director” has the meaning given in section 417 of the 2000 Act;
“electronic money institution” has the meaning given in regulation 2(1) of the Electronic Money Regulations 201115;
“enactment” includes an Act of the Scottish Parliament and any order, regulation or other instrument having effect by virtue of such an Act;
“firearms dealer” has the meaning given in section 57(4) of the Firearms Act 196816;
“Head of Practice” has the meaning given in Part 2 of the Legal Services Act;
“health services” means services provided under the National Health Service (Scotland) Act 197817 and similar services provided otherwise than under the National Health Service;
“Her Majesty’s Inspectors” has the meaning given in section 135 of the Education (Scotland) Act 198018;
“judicial appointment” means an appointment to any office by virtue of which the holder has power (whether alone or with others) under any enactment or rule of law to determine any question affecting the rights, privileges, obligations or liabilities of any person;
“key worker”, in relation to any body (“A”), means any individual who is likely, in the course of the duties of that individual’s office or employment—
- a
where A is the Authority, to play a significant role in the decision making process of the Authority in relation to the exercise of the Authority’s public functions (within the meaning of section 349(5) of the 2000 Act) under any provision of the 2000 Act other than Part VI, or to support directly such a person;
- b
where A is the competent authority for listing, to play a significant role in the decision making process of the competent authority for listing in relation to the exercise of its functions under Part VI of the 2000 Act, or to support directly such a person;
- a
“lay representative”, for the purposes of sheriff court proceedings, has the meaning given in section 32A(3) of the Sheriff Court (Scotland) Act 197119 and, for the purposes of Court of Session proceedings, has the meaning given in section 5A(3) of the Court of Session Act 198820;
“the Legal Services Act” means the Legal Services (Scotland) Act 201021;
“licensed legal services provider” has the meaning given in Part 2 of the Legal Services Act22;
“manager” has the meaning given in section 423 of the 2000 Act;
“non-solicitor investor” has the meaning given in Part 2 of the Legal Services Act23;
“open-ended investment company” has the meaning given in section 236 of the 2000 Act;
“Part IV permission” has the meaning given in section 40(4) of the 2000 Act;
“payment services” has the meaning given in regulation 2(1) of the Payment Services Regulations 200924;
“personal information” means any information (in any form) which relates to a living individual who can be identified from that data, which is of a confidential nature and is not in the public domain;
“Practice Committee” has the meaning given in Part 2 of the Legal Services Act25;
“private hire driver” means a driver of a private hire car, as defined by section 23(1) of the Civic Government (Scotland) Act 198226, who is required to be licensed by a licensing authority under the provisions of that Act;
“prosecutor” has the meaning given in section 307 of the Criminal Procedure (Scotland) Act 199527;
“registered chiropractor” has the meaning given in section 43 of the Chiropractors Act 199428;
“registered European lawyer” has the meaning given in section 65 of the Solicitors (Scotland) Act 198029;
“registered foreign lawyer” has the meaning given in section 65 of the Solicitors (Scotland) Act 198030;
“registered osteopath” has the meaning given in section 41 of the Osteopaths Act 199331;
“registered pharmacist” means a person who is registered as a pharmacist in Part 1 or 4 of the register maintained under article 19 of the Pharmacy Order 201032;
“registered pharmacy technician” means a person who is registered in Part 2 or 5 of the register maintained under article 19 of the Pharmacy Order 2010;
“registered teacher” means a teacher registered under the Public Services Reform (General Teaching Council for Scotland) Order 201133;
“regulated work with adults” has the meaning given in section 91(3) of the 2007 Act;
“regulated work with children” has the meaning given in section 91(2) of the 2007 Act;
“relevant collective investment scheme” means a collective investment scheme which is recognised under sections 264 (schemes constituted in other EEA States)34, 270 (schemes authorised in designated countries or territories) or 272 (individually recognised overseas schemes) of the 2000 Act;
“Scottish Social Services Council” has the meaning given in section 43 of the 2001 Act;
“small electronic money institution” has the meaning given in regulation 2(1) of the Electronic Money Regulations 2011;
“small payment institution” has the meaning given in regulation 2(1) of the Payment Services Regulations 2009;
“Social Care and Social Work Improvement Scotland” has the meaning given in section 44 of the 2010 Act;
“social service worker” has the meaning given in section 77 of the 2001 Act;
“social worker” has the meaning given in section 77 of the 2001 Act35;
“taxi driver” means a driver of a taxi as defined by section 23(1) of the Civic Government (Scotland) Act 1982, who is required to be licensed by a licensing authority under the provisions of that Act;
“trustee”, in relation to a unit trust scheme, has the meaning given in section 237(2) of the 2000 Act;
“UK recognised clearing house” means a clearing house in relation to which a recognition order under section 290 of the 2000 Act36, otherwise than by virtue of section 292(2) (overseas clearing houses) of that Act, is in force;
“UK recognised investment exchange” means an investment exchange in relation to which a recognition order under section 290 of the 2000 Act, otherwise than by virtue of section 292(2) (overseas investment exchanges) of that Act, is in force;
“work” includes work of any kind, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract.
2
Any reference in this Order to a numbered article or Schedule is, unless the context otherwise requires, a reference to the article or Schedule so numbered in this Order.
Exclusion of section 4(1) of the Act3
The application of section 4(1) of the Act is excluded in relation to—
a
any proceedings specified in Schedule 1; and
b
any proceedings with respect to a decision or a proposed decision specified in Part 1 of Schedule 2—
i
to the extent that there falls to be determined in those proceedings any issue relating to a spent conviction or to circumstances ancillary thereto; and
ii
to the extent that section 4(1) renders inadmissible any evidence relating to the conviction or circumstances or removes the requirement to answer any question relating to the conviction or circumstances.
Exclusion of section 4(2)(a) and (b) of the Act4
The application of section 4(2)(a) and (b) of the Act is excluded in relation to questions put in the circumstances to which Schedule 3 applies.
Exceptions from section 4(3) of the Act5
There is excepted from the provisions of section 4(3)(b) of the Act—
a
any profession, office, employment or occupation specified in Schedule 4;
b
any action taken for the purpose of safeguarding national security; and
c
any decision or proposed decision taken by a person specified in Part 1 of Schedule 2 to do or to refuse to do anything specified in that Part.
Exclusion of paragraph 3 of Schedule 3 to the Act6
1
The exclusions in paragraph (2) extend only to alternatives to prosecution of the types mentioned in section 8B(1)(b), (c), (e) and (f) of the Act37.
2
The application of paragraph 3 of Schedule 3 (protection for spent alternatives to prosecution: Scotland) to the Act38 is excluded, in relation to—
a
any proceedings specified in Schedule 1; and
b
any proceedings with respect to a decision or a proposed decision specified in Part 1 of Schedule 2—
i
to the extent that there falls to be determined in those proceedings any issue relating to a spent alternative to prosecution or to circumstances ancillary thereto; and
ii
to the extent that paragraph 3 renders inadmissible any evidence relating to the alternative to prosecution or circumstances or removes the requirement to answer any question relating to the alternative to prosecution or circumstances.
Exclusion of paragraph 4(2) and (3) of Schedule 3 to the Act7
1
The exclusion in paragraph (2) extends only to alternatives to prosecution of the types mentioned in section 8B(1)(b), (c), (e) and (f) of the Act.
2
The application of paragraph 4(2) and (3) of Schedule 3 to the Act is excluded in relation to questions put in the circumstances to which Schedule 3 applies.
Exceptions from paragraph 5 of Schedule 3 to the Act8
1
The exceptions in paragraph (2) extend only to alternatives to prosecution of the types mentioned in section 8B(1)(b), (c), (e) and (f) of the Act.
2
There is excepted from the provisions of paragraph 5 of Schedule 3 to the Act—
a
any profession, office, employment or occupation specified in Schedule 4;
b
any action taken for the purpose of safeguarding national security; and
c
any decision or proposed decision taken by a person specified in Part 1 of Schedule 2 to do or to refuse to do anything specified in that Part.
Revocation9
The instruments specified in column 1 of the table in Schedule 5 are revoked to the extent specified in column 2 of that table.
SCHEDULE 1PROCEEDINGS
1
Proceedings in respect of a person’s admission to, or disciplinary proceedings against a member of, any profession specified in Part 1 of Schedule 4 to this Order.
2
Disciplinary proceedings against a constable.
3
Proceedings before the Gambling Commission.
4
Proceedings under the Mental Health (Care and Treatment) (Scotland) Act 200339 before the Mental Health Tribunal for Scotland or the Mental Welfare Commission for Scotland.
5
Proceedings under the Firearms Act 196840 in respect of—
a
the registration of a person as a firearms dealer, the removal of a person’s name from a register of firearms dealers or the imposition, variation or revocation of conditions of any such registration;
b
the grant, renewal, variation or revocation of a firearm certificate;
c
the grant, renewal or revocation of a shot gun certificate; or
d
the grant of a permit under section 7(1), 9(2) or 13(1)(c) of that Act41.
6
Proceedings in respect of the grant, renewal or variation of a licence under section 25 (restrictions on persons under eighteen going abroad for the purpose of performing for profit) of the Children and Young Persons Act 193342.
7
Proceedings in respect of a determination by the Scottish Ministers as to the suitability of a person to be the proprietor of an independent school within the meaning of section 135 of the Education (Scotland) Act 198043 including proceedings before an Independent Schools Tribunal in respect of the above matters under section 102 of the Education (Scotland) Act 198044.
8
Proceedings in respect of an application for, or cancellation of the Scottish Ministers’ approval of a place under section 1 of the Abortion Act 196745.
9
Proceedings before Social Care and Social Work Improvement Scotland under Part 5 of the 2010 Act.
10
Proceedings under the Control of Explosives Regulations 1991 (“the 1991 Regulations”)46 in respect of—
a
the application to the chief officer of police for an explosives certificate pursuant to regulation 447 of the 1991 Regulations certifying a person to be a fit person to acquire or acquire and keep explosives;
b
the revocation of such certificates pursuant to regulation 548 of the 1991 Regulations; or
c
the application to the sheriff pursuant to regulation 6(4) of the 1991 Regulations against application of the provisions relating to prohibited persons.
11
Proceedings by way of appeal against, or review of, any decision taken, by virtue of any of the provisions of this Order, on consideration of a spent conviction or a spent alternative to prosecution.
12
Proceedings held for the receipt of evidence affecting the determination of any question arising in any proceedings specified in this Schedule.
13
Proceedings held in respect of an application for the grant, renewal, or cancellation of a licence to be a taxi driver or private hire driver.
14
Proceedings—
a
before the National Lottery Commission in respect of the grant or revocation of a licence under Part 1 of the National Lottery etc. Act 199349; or
b
by way of appeal to the Secretary of State against the revocation of any such licence by the National Lottery Commission.
15
Proceedings in connection with a decision of the Scottish Social Services Council under Part 3 of the 2001 Act.
16
Proceedings in respect of a decision by a local authority to—
a
refuse to enter a person in; or
b
remove a person from,
the register maintained by the authority under section 82(1) of the Antisocial Behaviour etc. (Scotland) Act 200450.
17
Proceedings before the Parole Board for Scotland.
18
Proceedings in respect of the award, suspension or withdrawal of accreditation under any accreditation scheme made by the Scottish Ministers under section 11(1) of the Criminal Justice (Scotland) Act 200351.
19
The following proceedings under the Proceeds of Crime Act 200252—
a
proceedings under Chapters 2 or 3 of Part 5;
b
proceedings in relation to a notice under section 317(2), 321(2) or 322(2); and
c
proceedings in respect of an application made under Part 8 in connection with a civil recovery investigation (within the meaning of section 341).
20
Proceedings under section 11 of the Private Security Industry Act 200153.
21
The following proceedings under the Adults with Incapacity (Scotland) Act 200054—
a
proceedings before the sheriff under section 2055 of that Act;
b
proceedings before the Public Guardian or the sheriff under Part 3 of that Act; and
c
proceedings before the sheriff in respect of intervention orders or guardianship orders within the meaning of that Act.
22
Proceedings for or in connection with the recovery of compensation under sections 7A to 7D of the Criminal Injuries Compensation Act 199556.
23
Proceedings before the Scottish Criminal Cases Review Commission.
24
Proceedings before the assessor appointed either by the Scottish Ministers under section 133(4) of the Criminal Justice Act 198857 or in accordance with any scheme operated by the Scottish Ministers for the payment of compensation to a person who has spent time in custody following a wrongful conviction or charge.
25
Proceedings before the NHS Tribunal under Part II of the National Health Service (Scotland) Act 197858.
26
Proceedings before the Court of Session or the sheriff in respect of a guardianship order made under section 11 of the Children (Scotland) Act 199559.
27
Proceedings under Part 1 (consideration as to listing) of the 2007 Act.
28
Proceedings before the Court of Session or the sheriff in order to determine the suitability of a person to become a lay representative.
SCHEDULE 2FINANCIAL SERVICES
PART 1Decisions referred to at Articles 3(b) and 5(c)
1
Any decision by the Financial Services Authority—
a
to refuse an application for Part IV permission under the 2000 Act;
b
to vary or to cancel such permission (or to refuse to vary or cancel such permission) or to impose a requirement under section 43 of that Act;
c
to make, or to refuse to vary or revoke, an order under section 56 (prohibition orders) of that Act;
d
to refuse an application for the Authority’s approval under section 59 of that Act or to withdraw such approval;
e
f
to give a direction under section 25762 (authorised unit trust schemes) of the 2000 Act, or to vary (or to refuse to vary or revoke) such a direction;
g
to refuse to make, or to revoke, an authorisation order under regulation 14 of the Open-Ended Investment Companies Regulations 200163 or to refuse to give its approval under regulation 2164 of those Regulations to a proposal to replace a director or to appoint an additional director of an open-ended investment company;
h
to give a direction to an open-ended investment company under regulation 25 of those Regulations or to vary (or refuse to vary or revoke) such a direction;
i
to refuse to give its approval to a collective investment scheme being recognised under section 270 of the 2000 Act or to direct that such a scheme cease to be recognised by virtue of that section or to refuse to make, or to revoke an order declaring a collective investment scheme to be a recognised scheme under section 272 of that Act;
j
k
to make, or to refuse to vary or to revoke, an order under section 329 of the 2000 Act (orders in respect of members of a designated professional body in relation to the general prohibition);
l
to dismiss, fail to promote or exclude a person from being a key worker of the Authority;
m
to refuse an application for registration as an authorised electronic money institution or a small electronic money institution under the Electronic Money Regulations 2011;
n
to vary or cancel such registration (or to refuse to vary or cancel such registration) or to impose a requirement under regulation 7 of the Electronic Money Regulations 2011;
o
to refuse an application for registration as an authorised payment institution or a small payment institution under the Payment Services Regulations 2009; or
p
to vary or cancel such registration (or to refuse to vary or cancel such registration) or to impose a requirement under regulation 7 of the Payment Services Regulations 2009,
by reason of, or partly by reason of, a spent conviction of an individual, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances.
2
Any decision by the scheme operator within the meaning of section 225 of the 2000 Act of the Financial Ombudsman Service to dismiss, or not to appoint an individual as, an ombudsman within the meaning of Schedule 17 to the 2000 Act of the Financial Ombudsman Service by reason of, or partly by reason of, his spent conviction, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances.
3
Any decision of the competent authority for listing—
a
to refuse an application for listing under Part VI of the 2000 Act or to discontinue or suspend the listing of any securities under section 77 of that Act67;
b
to refuse to grant a person’s application for approval as a sponsor under section 8868 of the 2000 Act or to cancel such approval; or
c
to dismiss, fail to promote or exclude a person from being a key worker of the competent authority for listing,
by reason of, or partly by reason of, a spent conviction of an individual, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances.
4
Any decision of anyone who is specified in any of paragraphs 2 to 7 of the second column of the table in Part 2 of this Schedule, other than the Financial Services Authority, to dismiss an individual who has, or to fail to promote or exclude an individual who is seeking to obtain, the status specified in the corresponding entry in the first column of that table (but not, where applicable, the status of being an associate of another person), by reason of, or partly by reason of, a spent conviction of that individual or of that individual’s associate, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances.
5
Any decision of anyone who is specified in paragraphs 8(1), 14(1) or 16(1) of the second column of the table in Part 2 of this Schedule to dismiss an individual who has, or to fail to promote or exclude an individual who is seeking to obtain, the status specified in the corresponding entry in sub-paragraph (2) of the first column of that table (associate), by reason of, or partly by reason of, a spent conviction of that individual, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances.
6
Any decision of the Council of Lloyd’s—
a
to refuse to admit any person as, or to exclude, an underwriting agent (within the meaning of section 2 of the Lloyd’s Act 198269), where that person has, or who has applied for, Part IV permission; or
b
to dismiss, or to exclude a person from being, an associate of the Council of Lloyd’s,
by reason of, or partly by reason of, a spent conviction of an individual, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances.
7
Any decision of a UK recognised investment exchange or UK recognised clearing house to refuse to admit any person as, or to exclude, a member by reason of, or partly by reason of, a spent conviction of an individual, or of any circumstances ancillary to such a conviction or of a failure (whether or not by that individual) to disclose such a conviction or any such circumstances.
PART 2Table referred to in Part 1 of this Schedule and in paragraph 7 of Schedule 3
Column 1 (Status) | Column 2 (Questioner) |
|---|---|
1. A person with Part IV permission. | The Financial Services Authority. |
2.—(1) An approved person within the meaning of Part V of the 2000 Act (performance of regulated activities). | The Financial Services Authority or the authorised person within the meaning of section 31(2) of the 2000 Act or the applicant for Part IV permission who made the application for the Authority’s approval under section 59 of the 2000 Act in relation to the person mentioned in sub-paragraph (1) of the first column. |
(2) An associate of the person (whether or not an individual) mentioned in sub-paragraph (1). | |
3.—(1) The manager or trustee of an authorised unit trust scheme, within the meaning of section 237 of the 2000 Act. | The Financial Services Authority or the unit trust scheme mentioned in the first column. |
(2) An associate of the person (whether or not an individual) mentioned in sub-paragraph (1). | |
4.—(1) A director of an open-ended investment company. | The Financial Services Authority or the open-ended investment company mentioned in the first column. |
(2) An associate of the person (whether or not an individual) mentioned in sub-paragraph (1). | |
5. An associate of the operator or trustee of a relevant collective investment scheme. | The Financial Services Authority or the collective investment scheme mentioned in the first column. |
6. An associate of an UK recognised investment exchange or UK recognised clearing house. | The Financial Services Authority or the investment exchange or clearing house mentioned in the first column. |
7. A controller of a person with Part IV permission. | The Financial Services Authority or the person with Part IV permission mentioned in the first column. |
8.—(1) A person who carries on a regulated activity within the meaning of section 22 of the 2000 Act but to whom the general prohibition does not apply by virtue of section 327 (exemption from the general prohibition for members of a designated professional body) of the 2000 Act. | (1) The Financial Services Authority. |
(2) In the case of a person mentioned in sub-paragraph (2) of the first column, the person mentioned in sub-paragraph (1) of that column. | |
(2) An associate of the person (whether or not an individual) mentioned in sub-paragraph (1). | |
9. A key worker of the Financial Services Authority. | The Financial Services Authority. |
10. An ombudsman within the meaning of Schedule 17 to the 2000 Act of the Financial Ombudsman Service. | The scheme operator within the meaning of section 225 of the 2000 Act of the Financial Ombudsman Service. |
11. An associate of the issuer of securities which have been admitted to the official list maintained by the competent authority for listing under section 7470 of the 2000 Act. | The competent authority for listing. |
12. A sponsor within the meaning of section 88(2) of the 2000 Act. | The competent authority for listing. |
13. A key worker of the competent authority for listing. | The competent authority for listing. |
14. An associate of a person who has Part IV permission and who is admitted to Lloyd’s as an underwriting agent (within the meaning of section 2 of Lloyd’s Act 1982). | (1) The Council of Lloyd’s. |
(2) The person with Part IV permission specified in the first column (or a person applying for such permission). | |
15. An associate of the Council of Lloyd’s. | The Council of Lloyd’s. |
16.—(1) Any member of a UK recognised investment exchange or UK recognised clearing house. | (1) The UK recognised investment exchange or UK recognised clearing house specified in the first column. |
(2) Any associate of the person (whether or not an individual) mentioned in sub-paragraph (1). | (2) In the case of a person mentioned in sub-paragraph (2) of the first column, the person mentioned in sub-paragraph (1) of that column. |
17. A director or manager responsible for the management of the electronic money or payment services business of an electronic money institution. | The Financial Services Authority. |
18. A controller of an electronic money institution. | The Financial Services Authority. |
19. A director or a person responsible for the management of an authorised payment institution or a small payment institution. | The Financial Services Authority. |
20. A person responsible for the management of payment services provided, or to be provided, by an authorised payment institution or a small payment institution. | The Financial Services Authority. |
21. A controller of an authorised payment institution or a small payment institution. | The Financial Services Authority. |
SCHEDULE 3Exclusions of section 4(2)(a) & (b) of the Act and paragraph 4(2) & (3) of Schedule 3 to the Act
Application1
Subject to paragraph 2, this Schedule applies—
a
for the purposes of article 4, to the circumstances set out in paragraphs 3 to 15; and
b
for the purposes of article 7, to the circumstances set out in paragraphs 3 to 15 under exception of paragraph 10.
Requirements to inform2
1
This Schedule applies only where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed.
2
In the case of questions put in the circumstances to which paragraph 6 applies, the person questioned is also to be informed at that time that spent convictions are to be disclosed in the interests of national security.
3
References in sub-paragraphs (1) and (2) to convictions include references to alternatives to prosecution of the types mentioned in section 8B(1)(b), (c), (e) and (f) of the Act.
Specified professions etc.3
1
Any question asked in order to assess the suitability—
a
of the person to whom the question relates for a profession specified in Part 1 of Schedule 4;
b
of the person to whom the question relates for any office or employment specified in Part 2 of Schedule 4;
c
of the person to whom the question relates or of any other person to pursue any occupation specified in Part 3 of Schedule 4 or to pursue it subject to a particular condition or restriction; and
d
of the person to whom the question relates or of any other person to be placed on a register or to hold a licence, certificate or permit specified in sub-paragraph (3) or to be placed on it or hold it subject to a particular condition or restriction.
2
For the avoidance of doubt, references in sub-paragraph (1) to the suitability of a person for any profession or for any office, employment or occupation include the suitability of that person for training for such profession or, as the case may be, for training for such office, employment or occupation.
3
The register, licences, certificates or permits referred to in sub-paragraph (1)(d) are—
a
firearm certificates and shot gun certificates issued under the Firearms Act 1968, and permits issued under section 7(1), 9(2) or 13(1)(c) of that Act;
b
licences issued under section 25 (restrictions on persons under eighteen going abroad for the purpose of performing for profit) of the Children and Young Persons Act 193371;
c
explosives certificates issued by a chief officer of police pursuant to regulation 4 of the Control of Explosives Regulations 199172 as to the fitness of a person to acquire or acquire and keep explosives;
d
licences granted under section 8 of the Private Security Industry Act 200173; or
e
licences issued under, and the register of approved instructors referred to in, Part V (driving instruction) of the Road Traffic Act 198874.
Child minding4
Any question asked in order to assess the suitability of a person to act as a child minder (within the meaning of paragraph 12(1) of schedule 12 to the 2010 Act) where the person whose suitability is being assessed resides on the premises where the child minding would normally take place and the question relates to a person aged 16 or over who resides in the same premises as that person or to a person aged 16 or over who regularly works on them at a time when the child minding takes place.
Adoption and fostering5
1
Any question asked by or on behalf of any person for the purpose of assessing, investigating, reviewing or confirming the suitability of any person to adopt children in general or a child in particular, in the circumstances set out in sub-paragraph (3).
2
Any question asked by or on behalf of any person for the purpose of assessing, investigating, reviewing or confirming the suitability of any person to—
a
be a foster carer (within the meaning of section 96 of the 2007 Act); or
b
be a host parent (within the meaning of paragraph 11A75 of schedule 2 to the 2007 Act),
in the circumstance set out in sub-paragraph (3)(b).
3
The circumstances are that—
a
the question relates to the person whose suitability is being assessed, investigated, reviewed or confirmed; or
b
the question relates to a person over the age of 16 residing in the same household as the person whose suitability is being assessed, investigated, reviewed or confirmed.
4
Any question asked in order to assess the suitability of an individual seeking appointment as a member of—
a
an adoption panel or joint adoption panel under regulation 3 or 5 of the Adoption Agencies (Scotland) Regulations 200976; or
b
a fostering panel or joint fostering panel under regulation 17 or 19 of the Looked After Children (Scotland) Regulations 200977.
National security6
1
Any question asked by or on behalf of—
a
the Crown, the United Kingdom Atomic Energy Authority, the Financial Services Authority or a universal service provider within the meaning of section 65 of the Postal Services Act 201178, in order to assess, for the purpose of safeguarding national security, the suitability of the person to whom the question relates or of any other person for any office or employment;
b
the Civil Aviation Authority;
c
any other person authorised to provide air traffic services under section 4 or 5 of the Transport Act 200079 (in any case where such person is a company, an “authorised company”); or
d
subject to sub-paragraph (3)—
i
any company which is a subsidiary, within the meaning given by section 1159(1) of the Companies Act 200680, of an authorised company; and
ii
any company of which an authorised company is a subsidiary,
in the circumstances set out in sub-paragraph (2).
2
The circumstances are that the question is put in order to assess, for the purpose of safeguarding national security, the suitability of the person to whom the question relates or of any other person for any office or employment.
3
Where the question is put on behalf of a company mentioned in sub-paragraph (1)(d), this paragraph applies only where the question is put in relation to the provision of air traffic services.
Financial services7
Any question asked in order to assess the suitability of the individual to whom the question relates to have the status specified in the first column of the table in Part 2 of Schedule 2 by, or on behalf of, the person listed in relation to that status in the second column of that table.
The National Lottery Commission8
Any question asked by or on behalf of the National Lottery Commission for the purpose of determining whether to grant or revoke a licence under Part I of the National Lottery etc. Act 199381 where the question relates to an individual—
a
who manages the business or any part of the business carried on under the licence (or who is likely to do so if the licence is granted); or
b
for whose benefit that business is carried on (or is likely to be carried on if the licence is granted).
Registration of certain landlords9
Any question asked by or on behalf of a local authority in order to assess whether—
a
a relevant person within the meaning of section 83(8) of the Antisocial Behaviour etc. (Scotland) Act 200482 (“the 2004 Act”); or
b
a person acting for that person within the meaning of section 83(1)83 or 88(1) of the 2004 Act,
is a fit and proper person for the purpose of determining whether the relevant person should be entered in or removed from the register maintained by the local authority under section 82(1) of the 2004 Act.
Public procurement10
1
Any question asked by or on behalf of a contracting authority or contracting entity in relation to a conviction specified in regulation 23(1) of the Public Contracts (Scotland) Regulations 201284 which is a spent conviction (or any circumstances ancillary to such a conviction) for the purpose of determining whether or not to treat a person as ineligible—
a
for the purposes of regulation 23 of the Public Contracts (Scotland) Regulations 2012 or regulation 26 of the Utilities Contracts (Scotland) Regulations 201285; or
b
to participate in a design contest for the purposes of regulation 33 of the Public Contracts (Scotland) Regulations 2012 or regulation 34 of the Utilities Contracts (Scotland) Regulations 2012,
where the person questioned is informed at the time the question is asked that, by virtue of this Order, convictions within the meaning of regulation 23(1) of the Public Contracts (Scotland) Regulations 2012, which are spent convictions, are to be disclosed.
2
For the purposes of contract award procedures or design contests commenced before 1st May 2012—
a
the references in sub-paragraph (1) to regulations 23 and 33 of the Public Contracts (Scotland) Regulations 2012 are to be read as references to regulations 23 and 33 of the Public Contracts (Scotland) Regulations 200686; and
b
the references in sub-paragraph (1) to regulations 26 and 34 of the Utilities Contracts (Scotland) Regulations 2012 is to be read as references to regulations 26 and 34 of the Utilities Contracts (Scotland) Regulations 200687.
3
For the purposes of sub-paragraph (2), the commencement of a contract award procedure or design contest is to be interpreted in accordance with—
a
regulation 52(2) of the Public Contracts (Scotland) Regulations 2012; and
b
regulation 49(2) of the Utilities Contracts (Scotland) Regulations 2012.
The Risk Management Authority11
Any question asked by or on behalf of the Risk Management Authority in carrying out its functions in relation to risk management plans under the Criminal Justice (Scotland) Act 200388.
Access to information12
Any question asked by the Scottish Ministers for the purpose of considering the suitability of a registered person or a nominee of a registered person (within the meaning of the Police Act 199789) to have access to information released under section 113A90, 113B91, 113CA92 or 113CB93 of that Act or sections 52 to 54 of the 2007 Act.
Personnel suppliers13
Any question asked by or on behalf of a personnel supplier (within the meaning of section 97(1) of the 2007 Act) in order to assess the suitability of a person to be supplied by the personnel supplier to do regulated work with adults or regulated work with children for another person.
Non-solicitor investors in licensed legal services providers14
Any question asked by, or on behalf of, an approved regulator where it is asked for the purposes of section 62 of the Legal Services Act (fitness for involvement) in order to assess the fitness of a non-solicitor investor in a licensed legal services provider for having an interest in a licensed legal services provider.
Lay representatives15
Any question asked in order to assess the suitability of the person to whom the question relates to act as a lay representative.
SCHEDULE 4EXCEPTED PROFESSIONS, OFFICES, EMPLOYMENTS AND OCCUPATIONS
PART 1Professions
1
Medical practitioner.
2
Advocate, solicitor.
3
Accountant.
4
Dentist or any profession complementary to dentistry for which a title is specified in regulations under section 36A(2) of the Dentists Act 198494 (professions complementary to dentistry) by virtue of section 36A(3) of that Act.
5
Veterinary surgeon.
6
Nurse or midwife.
7
Ophthalmic optician, dispensing optician.
8
Registered pharmacist.
9
Registered pharmacy technician.
10
Registered teacher.
11
Any profession to which the Health Professions Order 200195 applies and which is undertaken following registration under that Order.
12
Registered osteopath.
13
Registered chiropractor.
14
Actuary.
15
Registered European lawyer, registered foreign lawyer.
16
Social worker.
17
Social service worker.
PART 2Offices and employments
1
Judicial appointments.
2
Prosecutors, officers assisting prosecutors, and officers assisting in the work of the Crown Office.
3
Signing justices, and their clerks and assistants.
4
Clerks (including depute and assistant clerks) and officers of the High Court of Justiciary, the Court of Session and the justice of the peace court, sheriff clerks (including sheriff clerks depute) and their clerks and assistants and other support officers assisting in the work of the Scottish Court Service.
5
Precognition agents.
6
Constables, police custody and security officers, persons appointed as police cadets to undergo training with a view to becoming constables, persons employed for the purposes of a police force established under any enactment, persons appointed to assist in the carrying out of police functions and naval, military and air force police.
7
Any office, employment or work which is concerned with the administration of, or is otherwise normally carried out wholly or partly within the precincts of a prison, remand centre, young offenders institution, detention centre or removal centre, and members of visiting committees for prisons appointed under rules made under section 39 of the Prisons (Scotland) Act 198996 and members of visiting committees for remand centres and young offenders institutions appointed under section 19(3)97 of that Act.
8
Traffic wardens appointed under or in accordance with section 95 of the Road Traffic Regulation Act 198498.
9
Any employment or work which is concerned with the provision of a care service.
10
Any employment or work which is concerned with the provision of health services and which is of such a kind as to enable the holder to have access to persons in receipt of such services in the course of that person’s normal duties.
11
Any regulated work with children.
12
Any employment or work in the Scottish Society for the Prevention of Cruelty to Animals where the person employed or working, as part of his or her duties, may carry out the killing of animals.
13
Any office, employment or work in the Serious Fraud Office.
14
Any office, employment or work in the Serious Organised Crime Agency.
15
Any office, employment or work in Her Majesty’s Revenue and Customs.
16
Any employment which is concerned with the monitoring, for the purposes of child protection, of communications by means of the internet.
17
Any office or employment in the Scottish Social Services Council.
18
Her Majesty’s Inspectors, or any person appointed by the Scottish Ministers for the purposes of section 66 of the Education (Scotland) Act 198099 or section 9 of the Standards in Scotland’s Schools etc. Act 2000100, or members of any Management Board established to assist either Her Majesty’s Inspectors or any such person, or any individual undertaking employment or work for Her Majesty’s Inspectors or any such person in relation to the carrying out of inspections under section 66 of the Education (Scotland) Act 1980, section 9 of the Standards in Scotland’s Schools etc. Act 2000 or section 115 of the 2010 Act101, or otherwise in regard to matters associated with such inspections.
19
The Principal Reporter or officers appointed under section 128(5) of the Local Government etc. (Scotland) Act 1994102 to assist that officer.
20
Members of a panel established by virtue of section 101(1) of the Children (Scotland) Act 1995103 (panels for curators ad litem, reporting officers and safeguarders).
21
Any office or employment in the Risk Management Authority.
22
Any office or employment in the Scottish Criminal Cases Review Commission.
23
Any office or employment in a relevant authority as defined in section 6 of the Fire (Scotland) Act 2005104.
24
Any employment or work in a body concerned primarily with the provision of counselling or other support to individuals who are or appear to be victims of, or witnesses to, offences, and which involves having access to personal information about such individuals.
25
Any regulated work with adults.
26
Members mentioned in section 35(4)(c) of the Judiciary and Courts (Scotland) Act 2008105 of a tribunal constituted under section 35(1) of that Act to consider the fitness for judicial office of a person holding a judicial office mentioned in section 35(2) of that Act.
27
Members mentioned in section 12A(4)(d) of the Sheriff Court (Scotland) Act 1971106 of a tribunal constituted under section 12A(1) of that Act to consider the fitness for shrieval office of a person holding a shrieval office mentioned in section 12A(2) of that Act.
28
Lay members of the Judicial Appointments Board for Scotland appointed by the Scottish Ministers under paragraph 2 of schedule 1 to the Judiciary and Courts (Scotland) Act 2008.
29
Non-judicial members of the Scottish Court Service mentioned in paragraph 2(3)(d) of schedule 3 to the Judiciary and Courts (Scotland) Act 2008.
30
Any office or employment in Social Care and Social Work Improvement Scotland.
31
Any office or employment in the General Teaching Council for Scotland.
32
A Head of Practice or a member of a Practice Committee of a licensed legal services provider.
PART 3Occupations
1
Firearms dealer.
2
Any occupation in respect of which an application to the Gambling Commission for a licence, certificate or registration is required by or under any enactment.
3
Any occupation which is concerned with the management of a place in respect of which the approval of the Scottish Ministers is required by section 1 of the Abortion Act 1967107.
4
Any occupation in respect of which the holder is required pursuant to regulation 4 of the Control of Explosives Regulations 1991108 to obtain from the chief officer of police an explosives certificate certifying that person to be a fit person to acquire or acquire and keep explosives.
5
Taxi driver or private hire driver.
6
Any occupation in respect of which an application to the Security Industry Authority for a licence is required by the Private Security Industry Act 2001.
7
Any occupation which is concerned with visiting persons detained in police stations, for the purposes of examining and reporting on the conditions under which they are held.
8
Any occupation in respect of which a licence or registration is required by or under Part V (driving instruction) of the Road Traffic Act 1988.
SCHEDULE 5REVOCATIONS
(This note is not part of the Order)