Part 1The lists
Duty to keep lists
I561Duty of Scottish Ministers to keep lists
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.
Referrals
I492Referral ground
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.
3Reference following disciplinary action etc.
I4I1071
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.
I4I1072
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.
I573
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.
I574
This section does not apply to personnel suppliers (see sections 4 and 5).
I99I54Reference by employment agency
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.
I12I1055Reference by employment business
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.
6Reference relating to matters occurring before provisions come into force
I941
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.
I1I842
But an organisation may give Ministers any prescribed information which it holds in relation to such an individual if it wishes to do so.
7Reference by court
I138I261
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.
I202
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).
I138I263
Where this subsection applies, the court may give Ministers any prescribed information that the court holds in relation to the convicted individual.
I204
This section applies in relation to offences committed before and after this section comes into force.
8Reference by certain other persons
I72I621
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.
I72I622
This section applies to—
The General Teaching Council for Scotland
F35 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
F1 The registrar of pharmacists
F5...
The Scottish Social Services Council
F50 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—
I53a
in relation to the General Teaching Council for Scotland, such functions as are conferred on it by virtue of the F42Public Services Reform (General Teaching Council for Scotland) Order 2011,
I53F89 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,
I53b
in relation to registrars mentioned in subsection (2), such functions as are conferred on them by virtue of any enactment,
I53c
F45ca
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
I132d
in relation to a person specified in an order made under subsection (2), such functions as are specified by the order.
I429Failure to refer: offence
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.
Consideration whether to list
I3210Consideration whether to list: organisational referrals etc.
1
This section applies
a
F51where—
F34i
prescribed information relating to an individual has been given to Ministers in pursuance of sections 3 to 6 or 8, and
F34ii
they are satisfied that the information was not given for vexatious or frivolous purposes
F10, 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 F31(if any) which the individual is or has been doing.
I11111Consideration whether to list: court referrals
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.
I6012Consideration whether to list: vetting information etc.
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.
I127C113Consideration whether to list: inquiries
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.
Inclusion in list
14Automatic listing
I801
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.
I802
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.
I83I753
It is for Ministers to specify by order criteria for the purposes of subsections (1) and (2).
I83I754
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.
I3115Inclusion in children's list after consideration
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.
I9116Inclusion in adults' list after consideration
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.
Information relevant to listing decisions
I14117Information relevant to listing decisions
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
F71 the Health and Care Professions Council ,
ix
the Nursing and Midwifery Council,
F68x
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
xi
the Scottish Social Services Council, F82...
F29xii
Social Care and Social Work Improvement Scotland, or
6
Subsections (1) and (3) do not apply if Ministers do not know and cannot reasonably ascertain the individual's whereabouts.
I5118Police information etc.
1
Ministers may, for the purpose of enabling or assisting them to decide whether to list an individual, require the chief constable F16... to provide them with any information relating to the individual which the chief constable F47... thinks might be relevant in relation to the type of regulated work concerned.
2
3
Ministers must pay the F64 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).
19Information held by public bodies etc.
I1191
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.
I1192
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.
I1123
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
F26 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
F61 The registrar of pharmacists
F13...
The Scottish Social Services Council
F9 Social Care and Social Work Improvement Scotland
F66...
Any other person specified in an order made by Ministers
I2520Information held by regulated work providers
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.
Appeals against listing
I921Appeals against inclusion in children's list
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.
I10622Appeals against inclusion in adults' list
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.
I623Further appeals in relation to inclusion in either list
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.
I8724Appeals in relation to listing: supplementary
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.
Removal from list
25Application for removal from list
I101
A listed individual may apply to Ministers for removal from—
a
the children's list, or
b
the adults' list.
I102
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—
I134I36a
it is made after the end of such period as may be prescribed (beginning on such date as may be prescribed), or
I10b
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.
I104
A period may not be prescribed under subsection (3)(a) in relation to a particular individual.
I105
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.
I106
Subsection (5) does not affect the generality of subsection (3)(b).
I5826Determination of application for removal from list
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).
I3527Appeals against refusal to remove individual from list
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.
I3928Late representations
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.
I13629Removal from list
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.
Listing: supplementary
I50C5C630Notice of listing etc.
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
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.
30AF86 Notification of health regulatory bodies etc.
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
F21the Health and Care Professions Council
the Nursing and Midwifery Council
the Pharmaceutical Society of Northern Ireland
the Royal Pharmaceutical Society of Great Britain.
F536
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).
I2231Relevant inquiries
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.
32Relevant offences etc.
I981
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.
I116I812
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.
I983
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 F40 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.
I984
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.
I10133Duty to notify certain changes
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.
Offences relating to regulated work
I8634Barred individuals not to do regulated work
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.
35Organisations not to use barred individuals for regulated work
I661
It is an offence for an organisation to offer regulated work to an individual barred from that work.
I41I1302
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.
I41I1303
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.
I664
An organisation which fails to comply with regulations made under subsection (2) commits an offence.
I665
An organisation commits an offence under subsection (1) if it offers regulated work to a barred individual who is already working for the organisation.
I666
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.
I667
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.
I11336Personnel suppliers not to supply barred individuals for regulated work
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.
I12537Penalties for offences relating to regulated work
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.
General and supplementary
I9038Police access to lists
1
Ministers must make available to F24the 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 F49constables 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.
I10239Restrictions on listing in children's list
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 F30...
2
Ministers need not consider an individual for listing in the children's list if—
a
b
subsection (3) applies.
3
This subsection applies where—
F19a
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 F46 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
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 F4they consider that it would be more appropriate for the individual’s case to be dealt with by ISA.—
F79a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F79b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F116
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.
I6340Restrictions on listing in adults' list
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 F90...
2
Ministers need not consider an individual for listing in the adults' list if—
a
b
subsection (3) applies.
3
This subsection applies where—
F25a
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 F81before, 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
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 F6 they consider that it would be more appropriate for the individual’s case to be dealt with by ISA.
F55a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F55b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F836
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.
I2141Protection from actions for damages
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 F92(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 20F94(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.
42Power to regulate procedure etc.
1
Ministers may, by regulations, make further provision about—
I123a
the information about listed individuals which is to be included in the children's list and adults' list,
I123b
the maintenance of those lists, and
I114I932
The regulations may, in particular, make provision in relation to the time within which anything has to be done.
I12643Transfer from 2003 Act list
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.
C7C3Part 2Vetting and disclosure
Pt. 2 modified (28.2.2011) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Provisions) Order 2010 (S.I. 2010/2660), arts. 1, 21
The Scheme
I124C7C344C7C3The Scheme
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.
I68C7C345C7C3Participation in Scheme
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.
I135C7C346C7C3Statement of scheme membership
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, F93...
F93b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Vetting information
I97C7C347C7C3Enquiries about scheme members
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).
I115C7C348C7C3Scheme record
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.
49C7C3Vetting information
1
Vetting information, in relation to a scheme member, is—
I11a
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),
I11b
if the scheme member is subject to notification requirements under Part 2 of the Sexual Offences Act 2003 (c. 42), information about those requirements,
F48c
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
I112
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.
I61C7C350C7C3Duty to notify certain changes
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.
I65C7C351C7C3Correction of inaccurate scheme record
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).
F25
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.
F207
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).
52ZAF41Procedure following correction of inaccurate scheme record
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 for an offence listed in schedule 8B of the 1997 Act which is—
i
a spent conviction, but
ii
not a protected conviction.
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.
Disclosure
52F85Disclosure of scheme records
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 for an offence listed in schedule 8B of the 1997 Act which is—
a
a spent conviction, but
b
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 for an offence listed in schedule 8B of the 1997 Act which is—
a
a spent conviction, but
b
not a protected conviction.
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).
52AF85Review of vetting information in scheme record
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 3 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.
I8C7C353C7C3Disclosure of short scheme records
1
F7Subject 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.
F701A
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,
F12b
says that no vetting information is included in the scheme member’s scheme record.
F324
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I139C7C354C7C3Disclosure of scheme membership
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.
I23C7C355C7C3Disclosure conditions
The disclosure conditions are—
Condition A | The 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 B | The scheme member participates in the Scheme in relation to that type of regulated work. |
Condition C | The 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 D | The person to whom the disclosure is to be made is a registered person for the purposes of Part 5 of the 1997 Act. |
I133C7C356C7C3Crown work
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.
I37C7C357C7C3Disclosure restrictions
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.
57AF76Meaning of “conviction” and “protected conviction”
For the purposes of sections 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 scheme
I118C7C358C7C3Removal from scheme
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.
I7C7C359C7C3Withdrawal from scheme
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.
I108C7C360C7C3Notice of removal
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.
I120C7C361C7C3Retention of scheme records after removal
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.
Evidence of identity
I47C7C362C7C3Evidence of identity
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.
63C7C3Power to use fingerprints to check applicant's identity
I76I771
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.
I382
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.
I383
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).
I384
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.
I385
This section does not affect the generality of section 62 in relation to any other type of evidence of identity.
64C7C3Power to use personal data to check applicant's identity
I781
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.
I122I1292
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
Offences relating to vetting information
I33C7C365C7C3Falsification of scheme records etc.
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.
I88C7C366C7C3Unlawful disclosure of scheme records etc.
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.
67C7C3Unlawful requests for scheme records etc.
I551
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.
I552
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—
I55a
to do, or to be offered or supplied for, the type of regulated work to which the disclosure record relates, or
I554
References in subsection (1) to disclosure records do not include references to information included in disclosure records.
I121C7C368C7C3Unlawful disclosure etc.: supplementary
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.
I27C7C369C7C3Penalties for offences relating to vetting information
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.
Fees, forms and other procedures
70C7C3Fees
I34I821
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.
I34I822
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.
I34I823
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.
I964
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.
I4671Forms
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).
I19I48C7C372C7C3Procedure
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.
Supplementary
73C7C3Consideration of suitability
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—
I142a
to do that type of regulated work for A,
I142b
to be supplied by A to do that type of regulated work for another person,
I142c
to be a teacher (for the purposes of F38 registration under the Public Services Reform (General Teaching Council for Scotland) Order 2011 )),
I142e
to be registered under Part 3 (registration of social workers etc.) of the 2001 Act,
I142f
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
I13C7C374C7C3Delegation of vetting and disclosure functions
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.
I28C7C375C7C3Sources of information
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
F58 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
4
Ministers must pay the F91 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) F56 (or in pursuance of any other power or duty to provide information to Ministers in relation to their functions under this Part) .
I110C7C376C7C3Police access to scheme information
1
Ministers must make available to F43the 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 F14 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 F74constables 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.
I24C4C7C377C7C3Statements of scheme membership: disclosure of whether individual under consideration for listing
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.
Part 3Amendment of Part 5 of the Police Act 1997
78Information in criminal conviction and record certificates
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.
I182
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.
I183
In section 119(1) of the 1997 Act, for “or cautions” substitute “
, cautions or other information
”
.
I184
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
”
.
I10079Form of Part 5 applications
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).
I5980Payment of fee for information from certain police forces
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).
81Regulations about registration
I171
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.
I642
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).
I173
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)
”
.
Part 4School care accommodation services
I4382Meaning of “school care accommodation service”
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
”
.
I2983Application of fire safety rules to school care accommodation service
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
”
.
Part 5Supplementary and general
I8584Guidance
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.
I4585Annual report
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.
I4486Transfer of Disclosure Scotland staff etc.
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.
I7087Power to give effect to corresponding legislation in England, Wales and Northern Ireland
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.
I89I131I92I7188Modification of enactments
Schedule 4 contains minor amendments and amendments and repeals consequential on the provisions of this Act.
I14089Offences by bodies corporate etc.
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.
I5490Crown application
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.
Part 6Interpretation
I10991Regulated work
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.
C292Individuals barred from regulated work
I1171
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).
I1172
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).
I40I1283
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).
I40I1284
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).
I40I1285
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).
I40I1286
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).
I13793Meaning of “harm”
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.
94Meaning of “protected adult”
1
For the purposes of this Act, a “protected adult” is an individual aged 16 or over who is provided with—
I30a
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 F84 Part 5 of the 2010 Act ,
I104I103b
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,
iii
by an independent hospital,
iv
by a private psychiatric hospital,
v
by an independent clinic, or
vi
by an independent medical agency,
I30c
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
ii
in respect of which a council has made a direct payment, or
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 F28—
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,
F37c
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” F17 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.
I9595Meaning of “work”
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.
I6796Fostering
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 F78 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 F33 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—
F62 “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),
F87...
97General interpretation
I21
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),
F27 “ the 2010 Act ” means the Public Services Reform (Scotland) Act 2010 (asp 8),
“care service” has the same meaning as in F75 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 F72 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,
- a
“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,
- a
“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),
“F39Independent Safeguarding Authority” and “F39ISA” 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
F80a 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,
- i
- a
“personnel supplier” means an organisation which carries on an employment agency or employment business,
F88...
“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),
F15 “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),
F73...
“Special Health Board” means a board constituted by order under section 2(1)(b) of the National Health Service (Scotland) Act 1978 (c. 29).
I522
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.
I523
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.
I524
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).
I525
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.
I526
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.
Part 7Final provisions
98Ancillary provision
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 information
Nothing in this Act affects any power which exists apart from this Act to disclose information.
100Orders and regulations
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
101Commencement
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 title
This Act may be cited as the Protection of Vulnerable Groups (Scotland) Act 2007.
Pt. 2 modified (28.2.2011) by The Protection of Vulnerable Groups (Scotland) Act 2007 (Consequential Provisions) Order 2010 (S.I. 2010/2660), arts. 1, 22