The Protection of Freedoms Act 2012 (Commencement No. 3) Order 2012

EXPLANATORY NOTE

(This note is not part of the Order)

This Order brings into force various provisions of the Protection of Freedoms Act 2012 (“the Act”).

Article 2 of this Order brings most of Chapters 1 and 2 of Part 5 of the Act into force on 10th September 2012.

Chapter 1 of Part 5 of the Act amends the Safeguarding Vulnerable Groups Act 2006 (“the 2006 Act”). The following changes are brought into force by article 2: the reduction of the scope of regulated activity relating to both children and vulnerable adults, the revised barring test, the abolition of monitoring and controlled activity, a new review power for the Independent Safeguarding Authority (“ISA”) and various provisions on information sharing with the police and keepers of registers. Similar changes made to the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 in Schedule 7 to the Act are also brought into force on 10th September 2012 by article 2.

Chapter 2 of Part 5 of the Act amends Part 5 of the Police Act 1997 (“the 1997 Act”), the provisions under which the Criminal Records Bureau (“CRB”), on behalf of the Secretary of State, issues CRB certificates. The following changes are brought into force by article 2: the repeal of section 113B(5) of the 1997 Act under which the police could disclose information directly to the employer without that information appearing on the certificate, a new provision enabling the registered person (the person who countersigns the certificate application) to check on the progress of an application, the new minimum age for applicants and counter-signatories, new grounds for refusing to register a person and enhanced safeguards for disclosure of information on enhanced criminal record certificates.

Article 3 brings into force Chapter 4 of Part 5 of the Act, which enables a person to apply to the Secretary of State to have particular convictions or cautions disregarded, on 1st October 2012. Article 3 also brings into force the power of the Secretary of State to appoint a Commissioner for the Retention and Use of Biometric Material on 1st October 2012.

Articles 4 and 5 ensure that the changes made in relation to the reduction of scope of regulated activity relating to both children and vulnerable adults and the new minimum age for applicants for a CRB certificate apply only in relation to those applications for CRB certificates received on or after 10th September 2012.

Articles 6 to 10 provide a mechanism whereby a person who is currently on either the children’s barred list, or the adults’ barred list, or both, can apply to the ISA to be removed from either or both lists if they would not now satisfy the barring test as it applies from 10th September 2012, namely that the ISA does not have reason to believe that they have engaged, or (at the time at which they were barred) might in future engage, in regulated activity relating to children or vulnerable adults. The existing appeals provisions apply in relation to an ISA decision under this mechanism. If the person is removed from a list because they have no connection to regulated activity, the ISA may still, in the future, bar that person on the same information if that person applies to work in regulated activity.

Articles 11 and 12 make provision for the Secretary of State (the CRB) to provide information to the ISA in order for the ISA to consider whether the amended barring test is met, particularly in relation to whether a person has engaged, is engaging or might in future engage in regulated activity. This provision is needed until the Disclosure and Barring Service takes over the CRB and ISA functions on 1st December 2012 at which stage paragraph 16 of Schedule 8 to the Act enables the DBS to use any information obtained in relation to one of its functions (e.g. CRB functions) to be used in relation to any of its other functions (e.g. ISA functions).

Articles 13 and 14 make similar provision to enable the Northern Ireland Department of Justice to pass information to the ISA, in order for the ISA to consider whether the barring test is met, until such time as there is permanent statutory provision for it to do so. It is expected that such a provision will be in the Fairer Faster Justice Bill to be introduced in the Northern Ireland Assembly in early 2013.

Articles 15 and 16 ensure that the ISA can use the barred list information it holds in order to check whether any of its members or employees are barred. This is a transitional provision until such time as the new barred list check under section 32A of the 2006 Act is commenced.