Protection of Vulnerable Groups (Scotland) Act 2007
An Act of the Scottish Parliament to bar certain individuals from working with children or certain adults; to require the Scottish Ministers to keep lists of those individuals; to make further provision in relation to those lists; to establish a scheme under which information about individuals working or seeking to work with children or certain adults is collated and disclosed; to amend Part 5 of the Police Act 1997; to amend the meaning of school care accommodation service in the Regulation of Care (Scotland) Act 2001; and for connected purposes.
Part 1The lists
Duty to keep lists
1Duty 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
2Referral ground
The referral ground—
F1(a)
in relation to an individual who is or has been carrying out (or has been offered or supplied for) a regulated role with children, is that the individual has, whether or not in the course of the individual carrying out that role—
(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,
F2(b)
in relation to an individual who is or has been carrying out (or has been offered or supplied for) a regulated role with adults, is that the individual has, whether or not in the course of the individual carrying out that role—
(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.
(1)
An organisation must give Ministers any prescribed information which it holds in relation to an individual who is or has been F3carrying out a regulated role 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 F4role, 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 F5carrying out the regulated role, or
(ii)
been working for the organisation for a fixed term.
(2)
An organisation must give Ministers any prescribed information which it holds in relation to an individual who has been F6carrying out a regulated role if—
(a)
the individual stops F7carrying out the regulated role in circumstances not falling within subsection (1),
(b)
the organisation subsequently becomes aware of information which it was unaware of when the individual stopped F8carrying out the regulated role, 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 F9carrying out the regulated role,
it would or might have dismissed the individual on the referral ground.
(3)
In subsections (1) and (2)—
(a)
an individual suspended from F10a regulated role is not to be treated as having stopped carrying out that role,
(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 F11role from which the individual was transferred.
(4)
This section does not apply to personnel suppliers (see sections 4 and 5).
4Reference 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 F12carrying out a regulated role if it has, on the referral ground, decided—
(a)
not to do any further business with the individual, or
5Reference 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 F15a regulated role if—
(a)
it has dismissed the individual on the referral ground,
(b)
the individual has otherwise stopped F16carrying out the regulated role 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 F17another regulated role.
6Reference relating to matters occurring before provisions come into force
(1)
The duties in sections 3 to 5 do not apply where the individual stopped F18carrying out the regulated role (or, as the case may be, the organisation's opinion was formed) before the date on which the provisions imposing the duties come into force.
(2)
But an organisation may give Ministers any prescribed information which it holds in relation to such an individual if it wishes to do so.
F196AReference by chief constable
The chief constable must give Ministers any prescribed information that the chief constable holds in relation to an individual whom the chief constable considers is or has been carrying out a type of regulated role while not participating in the Scheme in relation to that type of regulated role.
7Reference by court
(1)
Where a court convicts an individual of a relevant offence, it must give Ministers any prescribed information that it holds in relation to the convicted individual.
(2)
Subsection (3) applies where a court—
(a)
convicts an individual of an offence (other than a relevant offence), and
(b)
is satisfied that it may be appropriate for the individual to be listed in the children's list or in the adults' list (or in both lists).
(3)
Where this subsection applies, the court may give Ministers any prescribed information that the court holds in relation to the convicted individual.
(4)
This section applies in relation to offences committed before and after this section comes into force.
8Reference by certain other persons
(1)
A person to whom this section applies may give Ministers any prescribed information that the person holds in relation to an individual who is or has been F20carrying out a regulated role if—
(a)
on the basis of information obtained by the person in the exercise of relevant functions, the person considers that the referral ground is met (regardless of whether the conduct to which the information relates occurred before or after this section comes into force), and
(b)
prescribed information in relation to the individual has not been given to Ministers under sections 3 to 6 in respect of the conduct to which the information relates.
(2)
This section applies to—
F21Councils
The General Teaching Council for Scotland
F22Healthcare Improvement Scotland
F23An integration joint board established by order under section 9 of the Public Bodies (Joint Working) (Scotland) Act 2014
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
F24 The registrar of pharmacists
F25...
The Scottish Social Services Council
F26 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—
F27(za)
in relation to a council or an integration joint board mentioned in subsection (2), such functions as are conferred on either of them by the Social Work (Scotland) Act 1968, the Children (Scotland) Act 1995, the Adults with Incapacity (Scotland) Act 2000, the Adult Support and Protection (Scotland) Act 2007 or the Children and Young People (Scotland) Act 2014,
(a)
in relation to the General Teaching Council for Scotland, such functions as are conferred on it by virtue of the F28Public Services Reform (General Teaching Council for Scotland) Order 2011,
F29 (aa)
in relation to Healthcare Improvement Scotland, such functions as are conferred on it by virtue of the National Health Service (Scotland) Act 1978 (c. 29) and any other enactment,
(b)
in relation to registrars mentioned in subsection (2), such functions as are conferred on them by virtue of any enactment,
(c)
F33(ca)
in relation to Social Care and Social Work Improvement Scotland, such functions as are conferred on it by virtue of the 2010 Act and any other enactment, and
(d)
in relation to a person specified in an order made under subsection (2), such functions as are specified by the order.
9Failure 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
10Consideration whether to list: organisational referrals etc.
(1)
This section applies
(a)
F34where—
F35(i)
prescribed information relating to an individual has been given to Ministers in pursuance of sections 3 to 6 or 8, and
F37(aa)
where prescribed information relating to an individual has been given to Ministers in pursuance of section 6A, or
(b)
where information relating to an individual has been given to Ministers by the F38Disclosure and Barring Service.
(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 F39role (if any) which the individual is or has been carrying out.
11Consideration 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.
12Consideration 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 F40carry out a regulated role 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 F41carry out a regulated role with adults.
13Consideration whether to list: inquiries
(1)
This section applies where—
(a)
a relevant inquiry report names an individual who is or has been F42carrying out a regulated role, 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 F43carrying out a regulated role (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 F44role which the individual was carrying out.
Inclusion in list
14Automatic listing
(1)
Ministers must list an individual in the children's list where it appears to them that any of the criteria specified for the purposes of this subsection is satisfied in relation to the individual.
(2)
Ministers must list an individual in the adults' list where it appears to them that any of the criteria specified for the purposes of this subsection is satisfied in relation to the individual.
(3)
It is for Ministers to specify by order criteria for the purposes of subsections (1) and (2).
(4)
Criteria which may be so specified include—
(a)
that an individual has been convicted of, or cautioned in relation to, an offence of a specified description, including offences under—
(i)
the law of England, Wales, Northern Ireland, the Channel Islands or the Isle of Man,
(ii)
section 70 of the Army Act 1955 (c. 18),
(iii)
section 70 of the Air Force Act 1955 (c. 19),
(iv)
section 42 of the Naval Discipline Act 1957 (c. 53),
(v)
section 42 of the Armed Forces Act 2006 (c. 52),
(b)
that an order of a specified description imposing requirements about an individual's conduct has been made.
15Inclusion 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 F45carry out regulated roles with children.
16Inclusion 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 F46carry out regulated roles with adults.
Information relevant to listing decisions
17Information 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)
F47the General Pharmaceutical Council,
(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)
F48 the Health and Care Professions Council ,
(ix)
the Nursing and Midwifery Council,
F49(x)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(xi)
the Scottish Social Services Council, F50...
F51(xii)
Social Care and Social Work Improvement Scotland, or
(d)
made by any other person, or in any other circumstance, specified by order made by Ministers.
(6)
Subsections (1) and (3) do not apply if Ministers do not know and cannot reasonably ascertain the individual's whereabouts.
18Police information etc.
(1)
Ministers may, for the purpose of enabling or assisting them to decide whether to list an individual, require the chief constable F52... to provide them with any information relating to the individual which the chief constable F53... thinks might be relevant in relation to the type of regulated F54role concerned.
(2)
(3)
Ministers must pay the F57 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 F58role concerned,
F61(5)
In subsection (4)(b)—
“central records” has the meaning given in section 69 of the Disclosure (Scotland) Act 2020,
“relevant matter” means—
(a)
a conviction that is not a non-disclosable conviction within the meaning of section 9 of the Disclosure (Scotland) Act 2020,
(b)
F62a conviction that is not a non-disclosable children’s hearing outcome within the meaning of section 10 of that Act,
(c)
a caution within the meaning given in section 69 of that Act that is not spent by virtue of schedule 3 of the Rehabilitation of Offenders Act 1974, and
(d)
a prescribed civil court order.
19Information held by public bodies etc.
(1)
Ministers may, for the purpose of enabling or assisting Ministers to decide whether to list an individual, require—
(a)
any person who holds vetting information of a type prescribed under section 49(1)(d) to provide them with any such vetting information relating to the individual,
(b)
any of the persons set out in subsection (3) to provide them with any information held by the person which Ministers think might be relevant.
(2)
Information provided under subsection (1)(b) may, in particular, be information which relates to—
(a)
the regulated F63role concerned, or
(b)
the protection of children or protected adults in general, or of any child or protected adult in particular.
(3)
The persons who may be required to provide information under subsection (1)(b) are—
Councils
The General Teaching Council for Scotland
Health Boards and Special Health Boards
F64An integration joint board established by order under section 9 of the Public Bodies (Joint Working) (Scotland) Act 2014
F65 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
F66 The registrar of pharmacists
F67...
The Scottish Social Services Council
F68 Social Care and Social Work Improvement Scotland
F69...
Any other person specified in an order made by Ministers
20F70Information held by providers of regulated roles
(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 F71carrying out, or has carried out, a regulated role for the person,
(b)
the individual has been offered F72a regulated role by the person (whether or not the individual subsequently carried out the role),
(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 F73a regulated role (whether or not the arrangements are still in place), or
(d)
it is an employment business which employs or has employed the individual to F74carry out a regulated role 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
21Appeals 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 F75carry out regulated roles 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.
22Appeals 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 F76carry out regulated roles with 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.
23Further 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.
24Appeals 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
(1)
A listed individual may apply to Ministers for removal from—
(a)
the children's list, or
(b)
the adults' list.
(2)
References in this section to “the list” are to be read as references to the list from which the individual has applied for removal.
(3)
An application for removal from the list is competent only if—
(a)
it is made after the end of such period as may be prescribed (beginning on such date as may be prescribed), or
F77(b)
Ministers are satisfied that there has been a relevant change in the applicant's circumstances since the applicant—
(i)
was listed, or
(ii)
last made an application for removal from the list under this section.
(4)
A period may not be prescribed under subsection (3)(a) in relation to a particular individual.
F78(4A)
For the purposes of subsection (3)(b), a change in the applicant's circumstances is relevant if it is relevant to the question whether the applicant is no longer unsuitable to carry out regulated roles with children or, as the case may be, regulated roles with adults.
F79(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F79(6)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26Determination 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 F80carry out regulated roles 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 F81carry out regulated roles with adults, by removing the individual from the list, or
(b)
where they are not so satisfied, by refusing the application.
F82(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27Appeals 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 F83carry out regulated roles 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 F84carry out regulated roles with 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.
28Late 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.
F85(1A)
This section also applies where an individual listed under section 15 or 16 (other than one mentioned in subsection (1))—
(a)
seeks to make representations to Ministers as to why the individual should not have been listed, and
(b)
Ministers consider that it is appropriate in all the circumstances to allow the representations to be made.
(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.
29Removal 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.
(ii)
they are otherwise satisfied that the individual is no longer unsuitable to carry out regulated roles with children or, as the case may be, regulated roles with adults.
(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.
F88Appeals and removals: information powers
29AAppeals and removals: application of sections 18 to 20
(1)
Sections 18 to 20 apply—
(a)
for any of the purposes specified in subsection (2) as they apply for the purpose of enabling or assisting Ministers to decide whether to list an individual,
(b)
with the modifications that are specified in subsection (2) in relation to the purpose.
(2)
The purposes (and modifications) are—
(a)
enabling or assisting Ministers to consider, in relation to an appeal under section 21, 22 or 23, whether an individual should have been listed (with references to deciding whether to list an individual being read as references to deciding whether the individual should have been listed),
(b)
enabling or assisting Ministers to determine under section 26 an application for removal from the children's list or the adults' list (with references to deciding whether to list an individual being read as references to determining whether to remove an individual from the list),
(c)
enabling or assisting Ministers to consider, in relation to an appeal under section 27, whether an application for removal from the children's list or the adults' list should have been refused under section 26 (with references to deciding whether to list an individual being read as references to deciding whether an application for removal from the list should have been refused),
(d)
enabling or assisting Ministers to decide under section 28 or 29 whether to remove an individual from the children's list or the adults' list (with references to deciding whether to list an individual being read as references to deciding whether an individual should not have been listed or is no longer unsuitable to carry out regulated roles with children or, as the case may be, regulated roles with adults).”. Confirmation of PVG Scheme membership
Listing: supplementary
30Notice 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 F89regulated roles 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 F90regulated roles 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 F91roles with children, or
(ii)
Ministers are considering whether to list the individual in the children's list,
(c)
where—
(i)
the individual has been barred from regulated F94roles with adults, or
(ii)
Ministers are considering whether to list the individual in the adults' list,
(d)
any relevant regulatory body whom Ministers think it would be appropriate to notify of that fact.
F97(3A)
Subsection (3B) applies where—
(a)
Ministers are considering whether to list an individual by virtue of sections 10 to 13 or section 45B(7), and
(b)
they know that the individual is carrying out a regulated role with children or, as the case may be, a regulated role with adults for a person other than an organisation.
(3B)
Where this subsection applies, Ministers may notify the person—
(a)
that they are considering whether to list the individual in the children's list or, as the case may be, in the adults' list, and
(b)
of the details of any conditions that Ministers have imposed under section 13A(1) or, if no such conditions have been imposed, of that fact.”.
(3C)
After considering whether to list an individual as mentioned in subsection (3A)(a), Ministers may notify their decision (whether to list the individual or not to do so) to any person other than an organisation for whom they know the individual is carrying out a regulated role with children or, as the case may be, a regulated role with adults.
(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 F98carrying out a regulated role with children F99and any personnel supplier whom they know has offered or supplied the scheme member to carry out a regulated role 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 F100carrying out a regulated role with adults F101and any personnel supplier whom they know has offered or supplied the scheme member to carry out a regulated role 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) F102, (3B), (3C) 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.
F10630A. 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 F107carrying out a regulated role 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
F108the Health and Care Professions Council
the Nursing and Midwifery Council
the Pharmaceutical Society of Northern Ireland
the Royal Pharmaceutical Society of Great Britain.
F109(6)
31Relevant 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.
(1)
For the purposes of this Part an individual commits a relevant offence if the individual—
(a)
commits an offence which falls within paragraph 1 of schedule 1, or
(b)
falls within paragraph 2 of that schedule,
and references to being convicted of, or charged with, a relevant offence are to be construed accordingly.
(2)
Ministers may by order modify schedule 1 so as to modify the circumstances in which an individual is to be treated for the purposes of this Part as having committed a relevant offence.
(3)
Subsection (4) applies to an individual if—
(a)
the individual is charged with an offence,
(b)
either—
(i)
the individual is acquitted of the charge F112 by reason of the special defence set out in section 51A of the 1995 Act , or
(ii)
the court makes a finding under section 55(2) of the 1995 Act in respect of the individual, and
(c)
the court makes any order mentioned in section 57(2)(a) to (d) of the 1995 Act in relation to the acquittal or finding.
(4)
An individual to whom this subsection applies is to be treated, for the purposes of sections 7, 17 and 24, as having been convicted of the offence.
33Duty 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.
F113Offences relating to regulated roles
34F114Barred individuals not to carry out regulated roles
(1)
It is an offence for an individual to F115carry out, or to seek or agree to carry out, any regulated role 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 F116role, or
(b)
that the F117role concerned was a regulated role.
35F118Organisations not to use barred individuals for regulated roles
(1)
It is an offence for an organisation to offer F119a regulated role to an individual barred from that role.
(2)
(3)
Regulations may in particular—
(a)
impose prohibitions or requirements—
(i)
in relation to particular types of organisations only,
(ii)
in relation to particular kinds of regulated F122roles only, or
(b)
otherwise limit the purpose for which the prohibition or requirement is to apply (or the area in which it is to apply) in such manner as Ministers think appropriate.
(4)
An organisation which fails to comply with regulations made under subsection (2) commits an offence.
(5)
An organisation commits an offence under subsection (1) if it offers F123a regulated role to a barred individual who is already working for the organisation.
(6)
It is a defence for an organisation charged with an offence under subsection (1) or (4) to prove that it did not know, and could not reasonably be expected to have known, that the individual was barred from F124that regulated role.
(7)
For the purposes of subsection (1), an organisation is not to be treated as having offered F125a regulated role 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 F126carry out that role.
36F127Personnel suppliers not to supply barred individuals for regulated roles
(1)
A personnel supplier commits an offence if it—
(a)
offers or supplies an individual who is barred from F128regulated roles to an organisation, and
(b)
knows or has reason to believe that the organisation will make arrangements for the individual to F129carry out a regulated role 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 F130the regulated role.
37F131Penalties for offences relating to regulated roles
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.
F13237AOffences outside Scotland
(1)
This section applies where an offence is committed under section 34, 35 or 36 outside Scotland.
(2)
The person committing the offence may be prosecuted, tried and punished for the offence—
(a)
in a sheriff court district in which the person is apprehended or in custody, or
(b)
in a sheriff court district determined by the Lord Advocate,
as if the offence had been committed in that district.
(3)
The offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district.
General and supplementary
38Police access to lists
(1)
Ministers must make available to F133the 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)
39Restrictions on listing in children's list
(1)
(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—
F140(a)
the individual’s case has been dealt with in pursuance of relevant corresponding legislation, and
(b)
Ministers are satisfied that all information relating to the individual which they consider relevant to their decision whether to consider to list the individual was considered F141 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 F144they consider that it would be more appropriate for the individual’s case to be dealt with by F145DBS—
F146(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F146(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F147(6)
Where—
(a)
in pursuance of subsection (5), Ministers do not list an individual in the children’s list under section 14, and
(b)
F148DBS 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.
40Restrictions on listing in adults' list
(1)
(2)
Ministers need not consider an individual for listing in the adults' list if—
(a)
(b)
subsection (3) applies.
(3)
This subsection applies where—
F153(a)
the individual’s case has been dealt with in pursuance of relevant corresponding legislation, and
(b)
Ministers are satisfied that all information relating to the individual which they consider relevant to their decision whether to consider to list the individual was considered F154before, 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 F157they consider that it would be more appropriate for the individual’s case to be dealt with by F158DBS.
F159(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F159(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F160(6)
Where—
(a)
in pursuance of subsection (5), Ministers do not list an individual in the adults’ list under section 14, and
(b)
F161DBS 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.
41Protection 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 F162(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 20F163(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—
(a)
the information about listed individuals which is to be included in the children's list and adults' list,
(b)
the maintenance of those lists, and
(c)
the procedure which is to be followed in relation to any decision which Ministers are authorised or required to take under this Part.
(2)
The regulations may, in particular, make provision in relation to the time within which anything has to be done.
43Transfer 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.
Part 2Vetting and disclosure
The Scheme
44The Scheme
Ministers are to administer a scheme (“the Scheme”) under which information about individuals who F164carry out, or wish to carry out, regulated roles with children or protected adults is—
(a)
collated, and
(b)
disclosed,
in accordance with this Part.
F16545Participation in Scheme
(1)
An individual aged 16 or over may apply to Ministers—
(a)
to join the Scheme and become a member of the Scheme (a “scheme member”), or
(b)
if the individual is an existing scheme member, to renew that membership.
(2)
An individual may participate in the Scheme in relation to—
(a)
regulated roles with children,
(b)
regulated roles with adults, or
(c)
both types of regulated role.
(3)
Ministers must allow an individual to participate in the Scheme in relation to a type of regulated role if the individual is—
(a)
not barred from that type of regulated role, and
(b)
aged 16 or over.
F16645CIndividuals must be scheme members to carry out regulated roles
(1)
It is an offence for an individual to carry out, or to agree to carry out, any type of regulated role unless the individual participates in the Scheme in relation to that type of regulated role.
(2)
For the purposes of subsection (1), an individual is not to be treated as having agreed to carry out a regulated role if the individual's agreement is subject to the individual's participating in the Scheme in relation to that type of role.
(3)
It is a defence for an individual charged with an offence under subsection (1)—
(a)
to prove that the individual did not know, and could not reasonably be expected to have known, that the role concerned was a regulated role, and
(b)
where the individual participated in the Scheme in relation to the type of regulated role concerned and the individual's membership of the Scheme in relation to that type of regulated role was not renewed, to prove that the individual did not know, and could not reasonably be expected to have known, that the individual's membership of the Scheme had not been renewed.
(4)
Subsection (1) does not apply to an individual who is—
(a)
barred from the type of regulated role concerned (but see section 34),
(b)
aged under 16.
F16645DOrganisations not to use individuals for regulated roles without confirming scheme membership
(1)
It is an offence for an organisation to offer any type of regulated role to an individual unless the organisation has received a Level 2 disclosure in pursuance of a request under section 18(1)(a) of the Disclosure (Scotland) Act 2020 containing a statement confirming that the individual participates in the Scheme in relation to that type of regulated role.
(2)
For the purposes of subsection (1), an organisation is not to be treated as having offered a regulated role to an individual if the offer is subject to the organisation receiving a Level 2 disclosure as mentioned in subsection (1).
(3)
Subsection (1) does not apply in relation to an individual who is—
(a)
barred from the type of regulated role concerned (but see section 35),
(b)
aged under 16.
F16645EPower to require organisations to stop using individuals for regulated roles without scheme membership
(1)
Ministers may by regulations—
(a)
prohibit an organisation from permitting an individual to carry out a regulated role,
(b)
require an organisation to remove an individual from a regulated role,
where the individual does not participate in the Scheme in relation to that type of regulated role.
(2)
Regulations under subsection (1) may in particular—
(a)
impose prohibitions or requirements—
(i)
in relation to particular types of organisations,
(ii)
in relation to particular kinds of regulated roles,
(b)
otherwise limit the purposes 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.
(3)
An organisation which fails to comply with regulations made under subsection (1) commits an offence.
(4)
It is a defence for an organisation charged with an offence under subsection (3) to prove that it did not know, and could not reasonably be expected to have known, that the individual does not participate in the Scheme in relation to that type of regulated role.
F16645FPersonnel suppliers not to supply individuals for regulated roles without confirming scheme membership
(1)
Subsection (2) applies where a personnel supplier knows or has reason to believe that an organisation will make arrangements for an individual to carry out a type of regulated role.
(2)
Where this subsection applies, it is an offence for the personnel supplier to offer or supply the individual to the organisation in relation to that type of regulated role unless the personnel supplier has received a Level 2 disclosure in pursuance of a request under section 18(1)(a) of the Disclosure (Scotland) Act 2020 containing a statement confirming that the individual participates in the Scheme in relation to that type of regulated role.
(3)
Subsection (2) does not apply in relation to an individual who is—
(a)
barred from the type of regulated role concerned (but see section 36),
(b)
aged under 16.
F16645GPenalties for offences relating to regulated roles by individuals not in Scheme
A person who commits an offence under section 45C, 45D, 45E or 45F is liable—
(a)
on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both),
(b)
on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).
F167F16845HOffences outside Scotland
(1)
This section applies where an offence is committed under section 45C, 45D, 45E or 45F outside Scotland.
(2)
The person committing the offence may be prosecuted, tried and punished for the offence—
(a)
in a sheriff court district in which the person is apprehended or in custody, or
(b)
in a sheriff court district determined by the Lord Advocate,
as if the offence had been committed in that district.
(3)
The offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district.
F16946Confirmation of scheme membership
(1)
Ministers must provide a confirmation of scheme membership to each scheme member.
(2)
A confirmation of scheme membership is a document which—
(a)
specifies the type of regulated role in relation to which the scheme member participates in the Scheme,
(b)
confirms that the scheme member is not barred from that type of role,
(c)
if Ministers are considering whether to list the member in relation to that type of role—
(i)
states that fact, and
(ii)
sets out details of any conditions that Ministers have imposed under section 13A(1) or, if no such conditions have been imposed, states that fact, and
(d)
contains such other information about the scheme member as may be prescribed.
(3)
Ministers need not comply with subsection (1) where, at the same time as the individual applies to join the scheme, the individual makes an application under section 11 of the Disclosure (Scotland) Act 2020 for a Level 2 disclosure where section 17 of that Act applies.
F17046ANotice of barred status
(1)
Subsection (2) applies where—
(a)
an accredited body has countersigned an application for a Level 2 disclosure,
(b)
the individual applying for the disclosure seeks to participate in the Scheme,
(c)
the purpose of the disclosure is to enable the accredited body (or any person for whom the body acts) to consider the individual's suitability to carry out, or to be offered or supplied for, a type of regulated role, and
(d)
Ministers have refused to allow the individual to participate in the Scheme in relation to that type of regulated role because the individual is—
(i)
barred from regulated roles with children, or (as the case may be)
(ii)
barred from regulated roles with adults.
(2)
Where this subsection applies, Ministers must notify the accredited body that they have refused to allow the individual to participate in the Scheme in relation to that type of regulated role because the individual is—
(a)
barred from regulated roles with children, or (as the case may be)
(b)
barred from regulated roles with adults.
(3)
In this section—
“accredited body” has the meaning given in section 46(2) of the Disclosure (Scotland) Act 2020,
“Level 2 disclosure” has the meaning given in section 8 of that Act.
Vetting information
47Enquiries 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).
48Scheme record
A scheme record is a document comprising—
F171(a)
the information to be contained in a confirmation of scheme membership under section 46(2), and
(b)
vetting information about the scheme member which Ministers discover as a result of enquiries or arrangements made under section 47.
49Vetting information
(1)
Vetting information, in relation to a scheme member, is—
F172(a)
the prescribed details of every relevant matter relating to the scheme member that is recorded in central records,
(b)
if the scheme member is subject to notification requirements under Part 2 of the Sexual Offences Act 2003 (c. 42), information about those requirements,
F173(c)
information which—
(i)
the chief officer of a relevant police force reasonably believes to be relevant in relation to the type of regulated F174role in relation to which the scheme member participates in the Scheme, and
(ii)
in the chief officer’s opinion, ought to be included in the scheme member’s scheme record, and
(d)
such other information as may be prescribed.
F175(1A)
For the avoidance of doubt, information such as is mentioned in subsection (1)(c) may include information with respect to relevant behaviour (within the meaning of section 5(1)(a) of the Age of Criminal Responsibility (Scotland) Act 2019).
F176F177(1B)
Section 33 of the Disclosure (Scotland) Act 2020 (Level 2 disclosure: considering relevance and whether to include certain information) applies for the purposes of subsection (1)(c) of this section as it applies for the purposes of the sections mentioned in subsection (1) of that section, but as if—
(a)
references to a person considering whether a conviction, children's hearing outcome or other information is relevant for the purpose of a Level 2 disclosure were references to the chief constable considering whether information is relevant to the type of regulated role in relation to which the scheme member participates in the Scheme,
(b)
references to a person considering whether a conviction, children's hearing outcome or other information ought to be included in a Level 2 disclosure were references to the chief constable considering whether information ought to be included in the scheme member's scheme record,
(c)
references to a conviction or children's hearing outcome were omitted, and
(d)
references to other information were references to information mentioned in subsection (1)(c) of this section.
(2)
Regulations prescribing information for the purposes of subsection (1)(d) may require persons holding information of the type prescribed to disclose it to Ministers for the purposes of this Act.
F178(3)
In subsection (1)(a), “central records” and “relevant matter” have the same meanings as in section 18(5).
50Duty 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.
51Correction 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 F179or a review under section 21 of the Disclosure (Scotland) Act 2020, or otherwise) that any information included in it is inaccurate.
F180(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F180(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F180(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F180(4A)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F180(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F180(6)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F180(7)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F18152ZAProcedure following correction of inaccurate scheme record
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Disclosure
F18252Disclosure of scheme records
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F18352AReview of vetting information in scheme record
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F18453Disclosure of short scheme records
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F18554Provision of confirmation of scheme membership to third parties
(1)
Where—
(a)
a scheme member requests that Ministers make a confirmation of scheme membership available to such other person (a “third party”) as the member specifies in the request, and
(b)
the conditions in subsection (2) are satisfied,
Ministers must comply with the request.
(2)
The conditions are that—
(a)
the request includes a statement referred to in subsection (3),
(b)
the request specifies the type of regulated role in relation to which it is made, and
(c)
the scheme member participates in the Scheme in relation to that type of regulated role.
(3)
The statement is a statement by the scheme member that the confirmation of scheme membership is requested for the purpose of enabling or assisting the third party (or any other person for whom the third party acts) to consider the member's suitability to carry out, or to be offered or supplied for, the type of regulated role in relation to which the member participates in the Scheme.
F18655Disclosure conditions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F18756Crown work
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F18857Disclosure restrictions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F18957AMeaning of “conviction” and “protected conviction”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Removal from scheme
58Removal from scheme
(1)
Ministers must remove a scheme member from the Scheme in relation to a type of regulated F190role if they—
(a)
bar the member from F191carrying out that type of role by listing the member, or
(b)
become aware that the member has otherwise been barred from F192that type of regulated role.
(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.
59Withdrawal from scheme
Ministers must remove a scheme member from the Scheme in relation to a type of regulated F193role if—
(a)
the scheme member applies to be so removed, and
(b)
they are satisfied that the scheme member is not F194carrying out that type of regulated role.
F19559AWithdrawal from Scheme when under consideration for listing
(1)
Where—
(a)
Ministers remove an individual who is a scheme member from the Scheme under section 59, and
(b)
at the time of the removal, they are considering whether to list the individual by virtue of sections 10 to 13 or section 45B(7),
they may decide not to continue to consider whether to list the individual.
(2)
Where Ministers decide under subsection (1) not to continue to consider whether to list an individual, that decision is not to be treated as a decision not to list the individual after considering whether to do so for the purposes of subsection (3C) or (4) of section 30 (and accordingly no notice of the decision under subsection (1) is to be given under either of those subsections of that section).
60Notice 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 F196role in relation to which the individual has been removed, and
(b)
say why the individual has been removed.
F197(2A)
Where Ministers decide under section 59A(1) not to continue to consider whether to list the individual a notice under subsection (1) must also give notice of that fact.
(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.
61Retention 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.
F198(3)
Where Ministers decide under section 59A(1) not to continue to consider whether to list an individual, Ministers may keep any information received by them when considering whether to list the individual for the purposes of enabling or assisting them to perform their functions under this Act.
Evidence of identity
62Evidence 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
F199(c)
a request for confirmation of scheme membership under section 54,
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.
63Power to use fingerprints to check applicant's identity
(1)
Ministers may require an applicant to join the Scheme, or a scheme member, to have fingerprints taken in such manner, and at such place, as may be prescribed for the purposes of enabling or assisting Ministers to satisfy themselves as to the identity of the applicant or, as the case may be, scheme member.
(2)
But Ministers may require an individual to have fingerprints taken under subsection (1) only if they are not satisfied by other evidence provided under section 62(1) as to the individual's identity.
(3)
Ministers must arrange the destruction of any such fingerprints as soon as reasonably practicable after they have been used for the purposes mentioned in subsection (1).
(4)
Any person who holds records of fingerprints for the use of police forces generally must make those records available to Ministers for the purposes of this section.
(5)
This section does not affect the generality of section 62 in relation to any other type of evidence of identity.
64Power to use personal data to check applicant's identity
(1)
Ministers may use information given to them by personal data holders to check evidence of identity given to them for the purposes of section 62.
(2)
Personal data holders are—
The Identity and Passport Service
The Driver and Vehicle Licensing Agency
Ministers of the Crown in connection with keeping of records of national insurance numbers
Such other persons holding data about individuals as may be prescribed
F200Offences relating to confirmation of scheme membership
65F201Falsification of confirmation of scheme membership
(1)
It is an offence for a person, with intent to deceive, to—
(a)
make a document which purports to be a F202confirmation of scheme membership made available under section 54,
(b)
alter F203such a confirmation,
(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 F206confirmation of scheme membership under section 54, or
(b)
satisfying Ministers that an individual who is F207carrying out a regulated role is not doing so.
66F208Unlawful disclosure of confirmation of scheme membership
(1)
A person to whom F209a confirmation of scheme membership is made available under section 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 F210confirmation of scheme membership—
(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 F211confirmation of scheme membership was made available for the purpose of enabling or assisting another person to consider a scheme member's suitability to F212carry out, or to be offered or supplied for, a regulated role—
(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 F213a confirmation of scheme membership 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 F214confirmation of scheme membership, 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 F215confirmation of scheme membership was made available under section 54, or
(b)
where the F216confirmation of scheme membership was made available for the purpose of enabling or assisting another person to consider a scheme member's suitability to F217carry out, or to be offered or supplied for, a regulated role—
(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 F218a confirmation of scheme membership made available under section 54 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 F219confirmation of scheme membership—
(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 F220a confirmation of scheme membership made available under section 54 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 F221confirmation of scheme membership, 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 F222confirmation of scheme membership was made available under section 54.
(9)
A person to whom F223a confirmation of scheme membership made available under section 54 is disclosed unlawfully commits an offence if the person discloses it to any other person.
67F224Unlawful requests for and use of confirmation of scheme membership
(1)
It is an offence to request provision of, or to otherwise seek sight of, a F225confirmation of scheme membership under section 54 for a purpose other than the permitted purpose.
(2)
It is an offence to use F226a confirmation of scheme membership made available under section 54 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 F227confirmation of scheme membership relates—
F228(a)
to carry out, or to be offered or supplied for, the type of regulated role to which the confirmation of scheme membership relates,
(b)
to F229carry out that type of regulated role in prescribed circumstances for any person other than Z in pursuance of arrangements under which services are provided to Z.
F230(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
68Unlawful disclosure etc.: supplementary
(1)
Nothing in section 66 prevents disclosure of F231a confirmation of scheme membership made available under section 54—
(a)
by the scheme member to whom the F232confirmation of scheme membership relates,
(b)
by any other person with the consent of the scheme member to whom the F233confirmation of scheme membership 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 F234a confirmation of scheme membership made available under section 54 otherwise than for the purpose of enabling or assisting the person in relation to whom the F235confirmation of scheme membership was made available under section 54 to consider the suitability of the scheme member concerned to F236carry out, or to be offered or supplied for, the type of regulated role concerned.
(3)
Nothing in section 67 prevents use of F237a confirmation of scheme membership made available under section 54 for a purpose other than the permitted purpose—
(a)
by the scheme member to whom the F238confirmation of scheme membership relates,
(b)
by any other person with the consent of the scheme member to whom the F239confirmation of scheme membership 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.
F240(4)
In sections 66 and 67(2) and in this section, references to a confirmation of scheme membership include references to any information contained in a confirmation of scheme membership.
(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.
69F241Penalties for offences relating to confirmation of scheme membership
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
70Fees
(1)
Ministers may charge such fee as may be prescribed—
(a)
in respect of applications to join, or to be removed from, the Scheme F242or to renew membership of the Scheme,
(b)
in respect of F243requests for confirmations of scheme membership under section 54, and
(c)
otherwise in respect of the performance of their functions under this Part.
(2)
Regulations may, in particular, provide for—
(a)
different fees in different circumstances,
(b)
annual or other recurring fees in respect of participation in the Scheme,
(c)
reduction, waiver or refund of fees in prescribed circumstances.
F244(d)
the manner in which fees are to be paid.
(3)
Before prescribing fees under this section, Ministers must have regard to—
(a)
the circumstances in which those fees are payable, and
(b)
the desirability of maintaining an appropriate balance among—
(i)
the quality of the performance of their vetting, barring and disclosure functions,
(ii)
the cost of that performance, and
(iii)
the fees paid to them in respect of that performance.
(4)
Where regulations provide for a fee to be charged in respect of—
(a)
an application to join, or to be removed from, the Scheme F245or to renew membership of the Scheme,, or
(b)
a F246request for confirmation of scheme membership under section 54,
Ministers need not consider the application or request unless the fee is paid F247in the manner provided for in the regulations.
71Forms
(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
F248(c)
requests for confirmation of scheme membership under section 54 (including a statement under subsection (3) of that section),
must be made.
(2)
Ministers may, in particular, determine that any such application, request or F249statement may be made in electronic form.
(3)
Ministers need not consider any such application, request or F250statement 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).
72Procedure
(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 F251or to renew membership of the Scheme,
(b)
prescribe circumstances in which scheme members are to be removed from the Scheme,
F252(c)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F253(d)
prescribe further procedure for making requests for confirmations of scheme membership under section 54 and making such confirmations available in pursuance of such requests.
Supplementary
73Consideration of suitability
References in this Part to a person (“A”) considering an individual's suitability F254to carry out, or to be offered or supplied for, any type of regulated role are references to A considering the individual's suitability—
(a)
to F255carry out that type of regulated role for A,
(b)
to be supplied by A to F256carry out that type of regulated role for another person,
F257(c)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F257(d)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F257(e)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F257(f)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g)
for any other prescribed purpose.
74Delegation 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.
75Sources 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)
F258 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.
F259(2A)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
(4)
Ministers must pay the F262 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) F263 (or in pursuance of any other power or duty to provide information to Ministers in relation to their functions under this Part).
F264(6)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
76Police access to scheme information
(1)
Ministers must make available to F265the 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 F266regulated roles 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 F267 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 F268constables of the Police Service of Scotland only for F269—
(a)
the performance of the chief constable's functions under this Part, or
(b)
the law enforcement purposes within the meaning of section 31 of the Data Protection Act 2018.
77F270Disclosure of whether an individual is under consideration for listing
(1)
F271A confirmation of scheme membership made available under section 54 or a Level 2 disclosure made available under section 18 of the Disclosure (Scotland) Act 2020 must not disclose whether Ministers are considering whether to list an individual F272(or details of any conditions that Ministers have imposed under section 13A(1)) if Ministers have not made a decision under section 15 or, as the case may be, 16 within the relevant period.
F273(1A)
Subsection (1) applies despite—
(a)
section 46(2)(c) or (d) of this Act,
(b)
section 16(4)(a)(iii) or (iv) or (b)(iii) or (iv) of the Disclosure (Scotland) Act 2020, or
(c)
section 17(3)(b) or (c) of that Act,
(as the case may be).
(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 F274, 13 or 45B(7) 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)
“(or states that there is no such conviction); and
(b)
if the applicant is subject to notification requirements under Part 2 of the Sexual Offences Act 2003 (c. 42), states that fact.”.
(2)
Section 113A of the 1997 Act is amended as follows—
(a)
“(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)
“and
(c)
a prescribed court order.”.
(3)
In section 119(1) of the 1997 Act, for “or cautions” substitute “
, cautions or other information
”
.
(4)
In section 119A of the 1997 Act—
(a)
in subsection (1), after “convictions” insert “
or other information
”
,
(b)
in subsection (2), for “or cautions” substitute “
, cautions or other information
”
.
79Form 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)
“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).”.
80Payment of fee for information from certain police forces
“(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
(1)
Section 120 of the 1997 Act is amended as follows—
(a)
in subsection (2), for “section 120A and regulations under subsection (3)” substitute “
sections 120ZB and 120A
”
,
(b)
subsection (3) is repealed.
(2)
“120ZBRegulations about registration
(1)
The Scottish Ministers may by regulations make further provision about registration.
(2)
Regulations under this section may in particular make provision for—
(a)
the payment of fees;
(b)
the information to be included in the register;
(c)
the registration of any person to be subject to conditions;
(d)
the nomination by—
(i)
a body corporate or unincorporated; or
(ii)
a person appointed to an office by virtue of an enactment, whether that body or person is registered or applying to be registered,
of an individual to act for the body or, as the case may be, person in relation to disclosure applications;
(e)
the refusal by the Scottish Ministers, on such grounds as may be specified in or determined under the regulations, to accept or to continue to accept any nomination made by virtue of this section;
(f)
the refusal by the Scottish Ministers to include persons who, in the opinion of the Scottish Ministers, are likely to act in relation to fewer disclosure applications in any period of 12 months than a minimum number specified in the regulations;
(g)
the removal from the register of persons who have, in any period of 12 months during which they were registered, acted in relation to fewer disclosure applications than the minimum number specified under paragraph (f);
(h)
the removal from the register of persons who are, in the opinion of the Scottish Ministers, no longer likely to wish to act in relation to disclosure applications;
(i)
the removal from the register of any person who has breached any condition of the person's registration; and
(j)
the period which must elapse before any person refused registration or removed from the register may apply to be included in the register.
(3)
The provision which may be made by virtue of subsection (2)(c) includes provision—
(a)
for the registration or continued registration of any person to be subject to prescribed conditions or, if the regulations so provide, such conditions as the Scottish Ministers think fit; and
(b)
for the Scottish Ministers to vary or revoke those conditions.
(4)
In subsection (2), references to acting in relation to disclosure applications are to be read as references to—
(a)
countersigning applications under section 113A or 113B; or
(b)
making declarations in relation to requests for disclosures under section 52 or 53 of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14).”.
(3)
Section 124A of the 1997 Act is amended as follows—
(a)
in subsection (1), for “section 120(3)(b)” substitute “
section 120ZB(2)(h)
”
, and
(b)
in subsection (3), for “section 120(3)(ac)” substitute “
section 120ZB(2)(j)
”
.
Part 4School care accommodation services
82Meaning of “school care accommodation service”
(1)
“(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
”
.
83Application 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
84Guidance
(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.
F27584AGuidance for chief constable
(1)
The Scottish Ministers must issue guidance to the chief constable about the exercise of the chief constable's functions under Parts 1 and 2 of this Act.
(2)
The Scottish Ministers may from time to time issue revised guidance, and references in this section to guidance include revised guidance.
(3)
Before issuing guidance under this section, the Scottish Ministers must consult the chief constable.
(4)
The chief constable must have regard to guidance issued under this section in exercising functions under Part 1 or 2 of this Act.
(5)
This section does not affect the generality of section 84.
85Annual 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.
86Transfer 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.
87Power 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.
88Modification of enactments
Schedule 4 contains minor amendments and amendments and repeals consequential on the provisions of this Act.
89Offences 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.
90Crown 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
F27691Regulated roles
(1)
A regulated role means a regulated role with children or adults.
(2)
A regulated role with children has the meaning given in schedule 2.
(3)
A regulated role with adults has the meaning given in schedule 3.
(4)
In this Act, there are two types of regulated roles—
(a)
regulated roles with children, and
(b)
regulated roles with adults.
(5)
References in this Act to types of regulated roles are to be construed accordingly.
92F277Individuals barred from regulated roles
(1)
An individual is barred from regulated F278roles with children if the individual is—
(a)
listed in the children's list,
(b)
included in the children's barred list maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006 (c. 47),
(c)
included (otherwise than provisionally) in the list kept under article 3 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003, or
(d)
an individual falling within subsection (3).
(2)
An individual is barred from regulated F279roles with adults if the individual is—
(a)
listed in the adults' list,
(b)
included in the adults' barred list maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006 (c. 47),
(c)
included (otherwise than provisionally) in the list kept under article 35 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003, or
(d)
an individual falling within subsection (4).
(3)
An individual falls within this subsection if, under the law of the Channel Islands, the Isle of Man, any British overseas territory or any other territory or country outwith the United Kingdom, the individual is subject to a prohibition or disqualification which Ministers by order provide corresponds to being barred from regulated F280roles with children by virtue of any of paragraphs (a) to (c) of subsection (1).
(4)
An individual falls within this subsection if, under the law of the Channel Islands, the Isle of Man, any British overseas territory or any other territory or country outwith the United Kingdom, the individual is subject to a prohibition or disqualification which Ministers by order provide corresponds to being barred from regulated F281roles with adults by virtue of any of paragraphs (a) to (c) of subsection (2).
(5)
Ministers may by order substitute such other list maintained under the law of England and Wales or, as the case may be, Northern Ireland, which in Ministers' opinion corresponds to the children's list for a list mentioned in subsection (1)(b) and (c).
(6)
Ministers may by order substitute such other list maintained under the law of England and Wales or, as the case may be, Northern Ireland, which in Ministers' opinion corresponds to the adults' list for a list mentioned in subsection (2)(b) or (c).
93Meaning 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—
F282(a)
an individual aged 18 or over who, by reason of physical or mental disability, illness, infirmity or ageing—
(i)
has an impaired ability to protect themself from physical or psychological harm, or
(ii)
requires assistance with the activities of daily living,
(b)
in relation to a regulated role with adults that involves the carrying out of activities mentioned in paragraph 17 of Part 2 of schedule 3, an individual aged 18 or over who—
(i)
is homeless (within the meaning of section 24 of the Housing (Scotland) Act 1987), or
(ii)
has experienced, is experiencing or is at risk of experiencing domestic abuse,
(c)
in relation to a regulated role with adults that involves the carrying out of activities mentioned in one or more of paragraphs 6 to 12 of Part 2 of schedule 3 (health care), an individual aged 18 or over who is being provided with a prescribed health service, or
(d)
in relation to a regulated role with adults that involves the carrying out of such of the activities mentioned in Part 2 of schedule 3 as may be prescribed, an individual aged 18 or over who is being provided with—
(i)
a prescribed support service,
(ii)
a prescribed adult placement service,
(iii)
a prescribed care home service,
(iv)
a prescribed housing support service,
(v)
a prescribed community care service, or
(vi)
a prescribed welfare service.
(2)
Ministers may by order modify subsection (1) in order to change the definition of “protected adult” as they think appropriate.
F283(2A)
In subsection (1)(b)(ii), “domestic abuse” means behaviour (whether or not amounting to a criminal offence) that—
(a)
is perpetrated between partners or ex-partners, whether in the home or elsewhere or by means of electronic or other forms of communications, and
(b)
involves any form of physical, verbal, sexual, psychological, emotional or financial abuse of one of the partners or ex-partners by the other.
(2B)
For the purposes of subsection (2A), a person is a partner of another person if they are—
(a)
married to each other,
(b)
civil partners of each other,
(c)
living with each other as if they were married to each other, or
(d)
otherwise in an intimate relationship with each other,
and the references to ex-partners are to be construed accordingly.
(3)
Expressions used in F284—
(a)
F285sub-paragraphs (i) to (iv) of subsection (1)(d) have the same meaning as in schedule 12 to the 2010 Act,
F286(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F286(c)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)
“community care service” has the same meaning as in the Social Work (Scotland) Act 1968 (c. 49),
F289...
(5)
In F290sub-paragraph (vi) of subsection (1)(d), “welfare service” includes any service which provides support, assistance, advice or counselling to individuals with particular needs.
F29195Meaning of “work”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
96Fostering
(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) F292...,
(b)
who looks after the child in pursuance of arrangements made by a council under 26(1)(c) (arrangements for accommodating children) of the F293Children (Scotland) Act 1995,
(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 F294 compulsory supervision order .
(2)
A foster carer is to be treated as F295carrying out a regulated role with children 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 F296 Children (Scotland) Act 1995,
(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 F297and sections 45C to 45F do not apply in relation to F298the carrying out of a regulated role as a foster carer where the F299role is carried out in pursuance of —
(a)
a permanence order which vests any parental responsibility or parental right in the foster carer, or
(b)
a F300 compulsory supervision order .
F301(4)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5)
References in section 3 to dismissing an individual F302carrying out a regulated role 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—
F303 “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 F304Children (Scotland) Act 1995,
“permanence order” means an order made under section 80(1) of the Adoption and Children (Scotland) Act 2007 (asp 4),
F305...
97General interpretation
(1)
In this Act—
“the 1995 Act” means the Criminal Procedure (Scotland) Act 1995 (c. 46),
“the 1997 Act” means the Police Act 1997 (c. 50),
“the 2001 Act” means the Regulation of Care (Scotland) Act 2001 (asp 8),
F306“ the 2010 Act ” means the Public Services Reform (Scotland) Act 2010 (asp 8),
“care service” has the same meaning as in F307 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 F308 the Police Service of Scotland ,
“child” means an individual under the age of 18,
“conduct” includes neglect and other failures to act,
F309“conviction” means a conviction within the meaning of the Rehabilitation of Offenders Act 1974; and references to “convicted” (other than in section 14) are to be construed accordingly,
“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,
F310“Disclosure and Barring Service” and “DBS” mean the body established by section 87(1) of the Protection of Freedoms Act 2012,
F311...
F311...
F311...
“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),
F312...
“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)
F313a college of further education which is assigned to a regional strategic body by order made under section 7C(1) of that Act,
- (iii)
a hostel used mainly by pupils attending a school or body mentioned in paragraph (i) or (ii) respectively,
“personnel supplier” means an organisation which carries on an employment agency or employment business,
F314...
F315“police force” has the same meaning as in section 69 of the Disclosure (Scotland) Act 2020,
“prescribed” F316... 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),
F317 “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),
F318...
“Special Health Board” means a board constituted by order under section 2(1)(b) of the National Health Service (Scotland) Act 1978 (c. 29).
(2)
For the purposes of this Act, Ministers must assume that an individual is F319carrying out a regulated role for an organisation if they—
(a)
have made available, in respect of the individual—
(i)
a confirmation of scheme membership under section 54,
(ii)
a Level 2 disclosure (within the meaning of section 8(1) of the Disclosure (Scotland) Act 2020) where section 17 of that Act applies,
in relation to that regulated role,
(b)
know that the confirmation of scheme membership or (as the case may be) the Level 2 disclosure was sought for the purpose of enabling or assisting the organisation to consider the scheme member's suitability to carry out that type of regulated role for the organisation (or to be offered such a role by the organisation), and
(c)
have not been satisfied that the individual has not been engaged to carry out, or has stopped carrying out, that type of regulated role for the organisation.
(3)
References in this Act to Ministers considering whether to list an individual are to be read as references to Ministers considering whether to list an individual in the children's list, in the adults' list or, as the case may be, in both lists in pursuance of section 10, 11, 12 or 13.
(4)
References in this Act to Ministers' vetting, barring and disclosure functions are references to their functions under Parts 1 and 2 of this Act and F320Part 1 of the Disclosure (Scotland) Act 2020 (other than functions relating to the making of regulations and orders).
(5)
References in this Act to relevant police forces, and to the chief officers of those forces, are to be read in the same way as they are read F321for the purposes of section 49 of the Disclosure (Scotland) Act 2020.
(6)
The words and other expressions listed in schedule 5 are defined or otherwise explained for the purposes of this Act by the provisions indicated in that schedule.
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—
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.
SCHEDULE 1Relevant offences
1
An offence falls within this paragraph if it is—
(a)
an offence under section 12 (cruelty to children under 16) of the Children and Young Persons (Scotland) Act 1937 (c. 37),
(b)
an offence under section 15 (causing or allowing children under 16 to be used for begging or procuring alms) of that Act,
(c)
an offence under section 22 (exposing a child under 7 to risk of burning) of that Act,
(d)
an offence under section 33 (causing or allowing children under 17 to participate in performances which endanger life or limb) of that Act,
(e)
an offence under section 52 (taking, distributing, showing, or publishing etc. any indecent photograph or pseudo-photograph of a child) of the Civic Government (Scotland) Act 1982 (c. 45),
(f)
an offence under section 52A (possessing any indecent photograph or pseudo-photograph of a child) of that Act,
F325(g)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(h)
an offence under section 3 (intercourse of person in position of trust with child under 16) of F326the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39),
F327(i)
an offence under section 5(2) (attempt to have intercourse with a girl under 13) of that Act,
(ia)
an offence under section 5(3) (intercourse or attempt to have intercourse with a girl of over 13 and under 16) of that Act,
(j)
an offence under section 6 (indecent behaviour towards girl between 12 and 16) of that Act,
(k)
an offence under section 8 (abduction and unlawful detention of unmarried girl under 18) of that Act,
(l)
an offence under section 9 (permitting girl under 16 to use premises for intercourse) of that Act,
(m)
an offence under section 10 (causing or encouraging the seduction of, the prostitution of, unlawful intercourse with or the commission of an indecent assault on a girl under 16) of that Act,
(n)
an offence under section 12 (allowing child who is 4 or over but under 16 to be in a brothel) of that Act,
(o)
an offence under section 13(5)(c) (homosexual acts with a boy under 16) of that Act,
(p)
an offence under section 3 (sexual activity of person in position of trust with child) of the Sexual Offences (Amendment) Act 2000 (c. 44),
(q)
an offence under section 1 (meeting a child following certain preliminary contact) of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9),
F328(r)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(s)
an offence under section 9 (paying for sexual services of a child) of that Act,
(t)
an offence under section 10 (causing or inciting provision by child of sexual services or child pornography) of that Act,
(u)
an offence under section 11 (controlling a child providing sexual services or involved in pornography) of that Act,
(v)
an offence under section 12 (arranging or facilitating provision by child of sexual services or child pornography) of that Act.
F329(w)
an offence under section 20(1) and (2)(a) (sexual assault on a young child (under 13) by penetration of the vagina, anus or mouth by any means) of the Sexual Offences (Scotland) Act 2009 (asp 9) where the conviction is in summary proceedings,
(x)
an offence under section 20(1) and (2)(b) to (e) (sexual assault on a young child) of that Act,
(y)
an offence under section 21 (causing a young child to participate in a sexual activity) of that Act,
(z)
an offence under section 22 (causing a young child to be present during a sexual activity) of that Act,
(za)
an offence under section 23 (causing a young child to look at a sexual image) of that Act,
(zb)
an offence under section 24 (communicating indecently with a young child etc. ) of that Act,
(zc)
an offence under section 25 (sexual exposure to a young child) of that Act,
(zd)
an offence under section 26 (voyeurism towards a young child) of that Act,
(ze)
an offence under section 28 (having intercourse with an older child) of that Act,
(zf)
an offence under section 29 (engaging in penetrative sexual activity with or towards an older child) of that Act,
(zg)
an offence under section 30 (engaging in sexual activity with or towards an older child) of that Act,
(zh)
an offence under section 31 (causing an older child to participate in a sexual activity) of that Act,
(zi)
an offence under section 32 (causing an older child to be present during a sexual activity) of that Act,
(zj)
an offence under section 33 (causing an older child to look at a sexual image) of that Act,
(zk)
an offence under section 34 (communicating indecently with an older child etc. ) of that Act,
(zl)
an offence under section 35 (sexual exposure to an older child) of that Act,
(zm)
an offence under section 36 (voyeurism towards an older child) of that Act,
(zn)
an offence under section 42 (sexual abuse of trust) of that Act,
(zo)
an offence in respect of attempting or conspiring to commit any offence referred to in this paragraph,
(zp)
an offence in respect of aiding and abetting, inciting, counselling or procuring any offence referred to in this paragraph,
(zq)
an offence in respect of attempting or conspiring to commit any offence listed in paragraphs 9, 10 or 11 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010,
(zr)
an offence in respect of aiding and abetting, inciting, counselling or procuring any offence listed in paragraphs 9, 10 or 11 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010,
F330(zra)
an offence under section 34 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016,
(zrb)
an offence under section 37 of that Act in respect of a breach of—
(i)
a sexual risk order made under section 122A of the Sexual Offences Act 2003,
(ii)
an interim sexual risk order made under section 122E of the Sexual Offences Act 2003,
(iii)
a risk of sexual harm order made under section 123 of the Sexual Offences Act 2003, or
(iv)
an interim risk of sexual harm order made under section 126 of the Sexual Offences Act 2003,
(zs)
an offence which—
(i)
is similar in nature to an offence referred to in this paragraph, and
(ii)
was provided for in an enactment which is no longer in force or was an offence at common law which has been abolished by an enactment.
2
An individual falls within this paragraph if the individual—
F331(za)
commits an offence of culpable homicide in relation to a child,
(a)
commits an offence under section 4(3) (offering or supplying controlled drugs) of the Misuse of Drugs Act 1971 (c. 38) in relation to a child,
F332(aa)
commits an offence under section 170 (penalty for fraudulent evasion of duty etc.) of the Customs and Excise Management Act 1979 (c.2) in relation to goods prohibited to be imported under section 42 (indecent or obscene articles) of the Customs Consolidation Act 1876 (c.36), if the prohibited goods included indecent photographs of persons under 16,
(b)
commits an offence under section 1 (incest) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) by having sexual intercourse with a child,
F333(ba)
commits an offence under section 2 (intercourse with a step-child) of that Act in relation to a child,
(c)
commits an offence under section 7 (procuring unlawful intercourse etc.) of that Act in relation to a child,
(d)
commits an offence under section 11 (trading in prostitution and brothel-keeping) of that Act in relation to a child,
(e)
commits an offence under section 13(6) (procuring commission of homosexual act between males) of that Act by procuring, or attempting to procure, a child to commit a homosexual act,
F334(ea)
commits an offence under section 83 (offence of ill treatment and wilful neglect) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) in relation to a child,
(eb)
commits an offence under section 311(1) and (2)(a) (non‑consensual sexual acts) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) in relation to a child where the conviction is in summary proceedings,
(ec)
commits an offence under section 311(1) and 2(b) (non‑consensual sexual acts) of that Act in relation to a child,
(ed)
commits an offence under section 313 (persons providing core services: sexual offences) of that Act in relation to a child,
(ee)
commits an offence under section 315 (ill treatment and wilful neglect of mentally disordered person) of that Act in relation to a child,
(ef)
commits an offence under section 4 (trafficking people for exploitation) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19) in relation to a child,
(eg)
commits an offence under section 1 (offence of female genital mutilation) of the Prohibition of Female Genital Mutilation (Scotland) Act 2005 (asp 8) in relation to a child,
(eh)
commits an offence under section 3 (aiding and abetting female genital mutilation) of that Act in relation to a child,
(ei)
commits an offence under section 3(1) and 2(a) (sexual assault by penetration of the vagina, anus or mouth by any means) of the Sexual Offences (Scotland) Act 2009 (asp 9) in relation to a child where the conviction is in summary proceedings,
(ej)
commits an offence under section 3(1) and (2)(b) to (e) (sexual assault) of that Act in relation to a child,
(ek)
commits an offence under section 4 (sexual coercion) of that Act in relation to a child,
(el)
commits an offence under section 5 (coercing a person into being present during a sexual activity) of that Act in relation to a child,
(em)
commits an offence under section 6 (coercing a person into looking at a sexual image) of that Act in relation to a child,
(en)
commits an offence under section 7 (communicating indecently etc.) of that Act in relation to a child,
(eo)
commits an offence under section 8 (sexual exposure) of that Act in relation to a child,
(ep)
commits an offence under section 9 (voyeurism) of that Act in relation to a child,
(eq)
commits an offence under section 11 (administering a substance for sexual purposes) of that Act in relation to a child,
(er)
commits an offence under section 46 (sexual abuse of trust of a mentally disordered person) of that Act in relation to a child.
(f)
commits any other offence which caused, or was intended to cause, bodily injury to a child,
(g)
commits any other offence by engaging in lewd, indecent or libidinous practice or behaviour towards a child.
F335(h)
commits an offence in respect of attempting or conspiring to commit any offence referred to in this paragraph,
(i)
commits an offence in respect of aiding and abetting, inciting, counselling or procuring any offence referred to in this paragraph, other than an offence referred to in sub-paragraph (eh),
(j)
commits an offence in respect of attempting or conspiring to commit any offence listed in paragraphs 1, 2, 3, 5, 6, 7 or 8 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010 in relation to a child,
(k)
commits an offence in respect of aiding and abetting, inciting, counselling or procuring any offence listed in paragraphs 1, 2, 3, 5, 6, 7 or 8 of Schedule 1 to the Protection of Vulnerable Groups (Scotland) Act 2007 (Automatic Listing) (Specified Criteria) Order 2010 in relation to a child,
(l)
commits an offence in relation to a child which—
(i)
is similar in nature to an offence referred to in this paragraph, and
(ii)
was provided for in an enactment which is no longer in force or was an offence at common law which has been abolished by an enactment.
F336SCHEDULE 2Regulated roles with children
PART 1Preliminary
Regulated roles with children
1
(1)
A regulated role with children is a role of any description which—
(a)
involves the carrying out of one or more activities mentioned in Part 2 of this schedule, and
(b)
satisfies the conditions mentioned in sub-paragraph (2).
(2)
The conditions are—
(a)
the activities are carried out—
(i)
as a necessary part of the role, and
(ii)
in Scotland, and
(b)
in the case of—
(i)
activities mentioned in paragraph 21 of Part 2 of this schedule, the carrying out of the activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have unsupervised contact with children,
(ii)
other activities mentioned in Part 2 of this schedule, the carrying out of the activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have contact with children.
(3)
A role—
(a)
the normal duties of which include the day-to-day supervision or management of an individual carrying out a regulated role by virtue of sub-paragraph (1), or
(b)
which involves training or studying in Scotland to carry out one or more activities mentioned in Part 2 of this schedule and which gives the individual undertaking the training or study, when doing anything permitted or required in connection with undertaking the training or study, the opportunity to have contact with children,
is to be treated as a regulated role with children for the purposes of sub-paragraph (1).
(4)
For the purposes of sub-paragraph (2)(a)(ii), where—
(a)
an activity is carried out outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,
(b)
the activity is carried out for—
(i)
an organisation with a place of business in Scotland, or
(ii)
a personnel supplier with a place of business in Scotland, and
(c)
the organisation's or personnel supplier's functions in relation to the carrying out of the activity by the individual are principally exercised at that place of business,
the activity is to be treated as if it were carried out in Scotland.
(5)
For the purposes of sub-paragraph (3)(b), where—
(a)
training or study is undertaken outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,
(b)
the person with principal responsibility for the provision of the training or course of study is—
(i)
an organisation with a place of business in Scotland, or
(ii)
a personnel supplier with a place of business in Scotland, and
(c)
the organisation's or personnel supplier's functions in relation to the undertaking of the training or study by the individual are principally exercised at that place of business,
the training or study is to be treated as if it were undertaken in Scotland.
Exceptions to regulated roles with children
2
(1)
A role which would be a regulated role with children by virtue of the carrying out of an activity mentioned in any of the paragraphs of Part 2 of this schedule is not, despite any of those provisions, a regulated role with children if—
(a)
the activity is carried out in relation to children in the course of the children's work (whether paid or unpaid work),
(b)
the activity is carried out in the course of a family relationship, or
(c)
the activity is carried out for an individual (“A”)—
(i)
in the course of a personal relationship,
(ii)
for no commercial consideration, and
(iii)
for the benefit of A, a member of A's family or A's friend.
(2)
In sub-paragraph (1)(b)—
(a)
a family relationship does not include a relationship between a child and a foster carer in relation to the child,
(b)
a family relationship includes a relationship between two persons who—
(i)
live in the same household, and
(ii)
treat each other as though they were members of the same family.
(3)
In sub-paragraph (1)(c)—
(a)
a personal relationship is a relationship between or among friends, and
(b)
“benefit” does not include commercial benefit.
(4)
For the purposes of sub-paragraphs (1)(c) and (3)(a), a friend of a member of an individual's family is to be regarded as being the individual's friend.
(5)
Ministers may prescribe circumstances in which an activity is or is not to be treated for the purposes of this paragraph as being done in the course of a family or personal relationship.
Definitions in relation to contact with children
3
(1)
In paragraph 1(2)(b)—
“contact with children”—
- (a)
means, in relation to an activity, contact that is more than incidental to the carrying out of the activity, and
- (b)
F337includes any of the following—
- (i)
physical contact with children,
- (ii)
visual, written or verbal communication with children,
- (iii)
exercising power or influence over children,
- (i)
- (a)
“unsupervised contact with children” means contact with children in the absence of—
- (a)
a responsible person,
- (b)
a person carrying out an activity mentioned in paragraph 4, 8 or 12 of Part 2 of this schedule, or
- (c)
an individual who, in relation to a child, has agreed to supervise the contact under arrangements made by the child's parent or guardian or any person aged 18 or over with whom the child lives in the course of a family or personal relationship,
- (a)
“responsible person” means, in relation to a child, any of the following persons—
- (a)
the child's parent or guardian,
- (b)
any person aged 18 or over with whom the child lives,
- (c)
the person in charge of any of the following establishments in which the child is accommodated, is a patient or receives education (and any person acting on behalf of such a person)—
- (i)
secure accommodation for children,
- (ii)
a hospital which is used exclusively or mainly for the reception and treatment of children,
- (iii)
an educational institution,
- (iv)
a hostel,
- (v)
a residential care setting,
- (i)
- (d)
a person who provides day care of children (within the meaning of schedule 12 of the Public Services Reform (Scotland) Act 2010),
- (e)
any person holding a position mentioned in sub-paragraph (2),
- (a)
“family relationship” and “personal relationship” are to be construed in accordance with paragraph 2(2) to (4).
(2)
The positions referred to in paragraph (e) of the definition of “responsible person” in sub-paragraph (1) are—
(a)
a manager or member of a governing body, body of trustees or other body responsible for the management of an educational institution or a hostel (other than a member of a council),
(b)
a member of—
(i)
a committee (including joint committee) of a council which is concerned with the provision of education, accommodation, social services or health care services to children,
(ii)
a sub-committee which discharges any functions of any such committee,
(c)
a member of—
(i)
the Children's Panel,
(ii)
the Safeguarders Panel,
(iii)
Children's Hearings Scotland,
(iv)
staff of Children's Hearings Scotland,
(v)
an area support team,
(vi)
the Scottish Children's Reporter Administration,
(vii)
staff of the Scottish Children's Reporter Administration,
(d)
the National Convener of Children's Hearings Scotland,
(e)
the Principal Reporter,
(f)
the chief social work officer of a council,
(g)
the Chief Education Officer of an education authority,
(h)
the Commissioner for Children and Young People in Scotland,
(i)
a member of staff of the Commissioner for Children and Young People in Scotland,
(j)
the Registrar of Independent Schools in Scotland,
(k)
a foster carer,
(l)
a charity trustee of a children's charity,
(m)
a person holding another position in a children's charity.
(3)
In paragraph 1(3), “contact with children”—
(a)
means, in relation to training or study, contact that is more than incidental to the undertaking of the training or study, and
(b)
F338includes any of the following—
(i)
physical contact with children,
(ii)
visual, written or verbal communication with children,
(iii)
exercising power or influence over children.
(4)
For the purpose of paragraph (b) of the definitions of “contact with children” in each of sub-paragraphs (1) and (3), “exercising power or influence over children” means—
(a)
assisting, facilitating, permitting or impeding progress towards a desirable objective or outcome for a particular child,
(b)
making decisions of an operational or strategic nature that could have an impact on a number of children, or
(c)
persuading or putting pressure on a particular child to behave or act in a certain manner for the financial gain or personal gratification of a person other than the child.
PART 2Activities
Child protection
4
Acting as a foster carer in relation to the child.
5
Making decisions in relation to a child's care arrangements where a council has facilitated the child's care arrangements.
6
Having responsibility for the safety and welfare of a child, other than acting as a foster carer in relation to the child.
7
Having the ability to directly influence decisions about the safety or welfare of a child, other than in the capacity of an elected representative or as the holder of a judicial office.
Education and training
8
Teaching, instructing or delivering training to children.
9
Having the ability to directly influence the operational delivery of education services for children, other than in the capacity of an elected representative or as the holder of a judicial office.
10
Holding power or influence over a child for the purpose of—
(a)
an activity in which the child is taking part or seeking to take part in,
(b)
arranging the future recruitment, training or employment of the child.
11
Providing advice or guidance to children in relation to career development or education.
Childcare
12
Being in charge of or caring for children, other than acting as a foster carer.
Care, health and accommodation services
13
Practising as a registered medical practitioner.
F33913A.
Practising as an anaesthesia associate or physician associate pursuant to registration with the General Medical Council.
14
Practising as a registered nurse, midwife or health visitor.
F34014A.
Practising in a profession pursuant to registration with the Health and Care Professions Council.
15
Practising as a chiropractor pursuant to registration with the General Chiropractic Council.
16
Practising as a dentist F341or dental care professional pursuant to registration with the General Dental Council.
17
Practising as an F342optometrist or dispensing optician pursuant to registration with the General Optical Council.
18
Practising as an osteopath pursuant to registration with the General Osteopathic Council.
19
Practising as a pharmacist F343or pharmacy technician pursuant to registration with the General Pharmaceutical Council.
20
Being engaged in the provision of a domestic service (including cleaning, preparing food, acting as a caretaker of premises or carrying out maintenance of premises) that is provided for children in an educational institution, hospital, F344nursery, day care premises, hospice, hostel, residential care setting or secure accommodation for children.
21
Carrying out an activity in an educational institution, hospital, nursery, day care premises, hospice, F345hostel, residential care setting or secure accommodation for children.
22
Providing a care home service or an independent healthcare service which is provided exclusively or mainly for children.
23
Being engaged by or on behalf of a child with an illness or disability to provide personal care services.
24
25
Having the ability to directly influence the operational delivery of medical or care services for children, other than in the capacity of an elected representative or as the holder of a judicial office.
Leisure activities
26
Providing cultural, leisure, social or recreational activities for children.
Sports activities
27
Coaching children in relation to sports or physical activity.
Religious activities
28
Providing religious activities or services for children.
Miscellaneous
29
Driving or escorting children in connection with transport services provided exclusively or mainly for children.
30
Holding a position of responsibility in an organisation which has as one of its main purposes the provision of benefits for or to children (regardless of whether the organisation has an additional purpose of providing benefits for or to another group of persons).
Interpretation
31
In this schedule—
“care home service” has the same meaning as in paragraph 2 of schedule 12 of the Public Services Reform (Scotland) Act 2010,
“children's charity” means a charity whose—
(a)
main purpose is to provide benefits for children, and
(b)
principal means of delivery of those benefits is by its staff carrying out regulated roles with children,
“day care premises” means premises at which day care of children (within the meaning of schedule 12 of the Public Services Reform (Scotland) Act 2010) is provided,
“educational institution” means a school or further education institution,
“elected representative” means—
(a)
a member of the House of Commons,
(b)
a member of the Scottish Parliament,
“further education institution” means a body listed under the heading “Institutions formerly eligible for funding by the Scottish Further Education Funding Council” in schedule 2 of the Further and Higher Education (Scotland) Act 2005 or a college of further education which is assigned to a regional strategic body by order made under section 7C(1) of that Act,
“hospital” has the meaning given in section 108(1) of the National Health Service (Scotland) Act 1978,
“hostel” means a hostel used mainly by pupils attending an educational institution,
“independent health care service” has the same meaning as in section 10F of the National Health Service (Scotland) Act 1978,
“judicial office” means—
(a)
the office of judge of any court,
(b)
the office of member of any tribunal,
(c)
any other office, or appointment, consisting of functions of a judicial nature,
“prison” means a prison or young offenders institution that is under the general superintendence of the Scottish Ministers under the Prisons (Scotland) Act 1989 and includes any contracted out prison within the meaning of section 106(4) of the Criminal Justice and Public Order Act 1994,
“prisoner” means a person committed to prison for trial, safe custody, punishment or otherwise,
“residential care setting” means a home that—
(a)
is provided exclusively or mainly for children, and
(b)
is—
- (i)
provided by a council in exercise of its functions under section 59 (provision by councils of residential and other establishments) of the Social Work (Scotland) Act 1968 or section 25 (provision of care and support services by councils) of the Mental Health (Care and Treatment) (Scotland) Act 2003, or
- (ii)
provided or secured by a person to whom such a function is delegated by a council in pursuance of an integration scheme under section 1 or 2 (integration schemes) of the Public Bodies (Joint Working) (Scotland) Act 2014,
“secure accommodation for children” means accommodation provided in a residential establishment, approved in accordance with regulations made under section 78(2) of the Public Services Reform (Scotland) Act 2010, for the purpose of restricting the liberty of children.
32
Ministers may by regulations amend the definition of “further education institution” in paragraph 31 so as to include or exclude bodies listed in schedule 2 of the Further and Higher Education (Scotland) Act 2005.
PART 3General
Power to amend schedule
33
Ministers may by regulations modify this schedule as they think appropriate.
34
Regulations under paragraph 33 may disapply or otherwise modify the application of sections 34 to 37 and sections 45C to 45G in relation to particular kinds of regulated roles with children.
F348SCHEDULE 3Regulated roles with adults
PART 1Preliminary
Regulated roles with adults
1
(1)
A regulated role with adults is a role of any description which—
(a)
involves the carrying out of one or more activities mentioned in Part 2 of this schedule, and
(b)
satisfies the conditions mentioned in sub-paragraph (2).
(2)
The conditions are—
(a)
the activities are carried out—
(i)
as a necessary part of the role, and
(ii)
in Scotland, and
F349(b)
in the case of—
(i)
activities mentioned in paragraph 13A of Part 2 of this schedule, the carrying out of activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have unsupervised contact with protected adults,
(ii)
other activities mentioned in Part 2 of the schedule, the carrying out of the activities gives the individual carrying them out, when doing anything permitted or required in connection with the carrying out of the activities, the opportunity to have contact with protected adults.
(3)
A role—
(a)
the normal duties of which include the day-to-day supervision or management of an individual carrying out a regulated role by virtue of sub-paragraph (1), or
(b)
which involves training or studying in Scotland to carry out one or more activities mentioned in Part 2 of this schedule and which gives the individual undertaking the training or study, when doing anything permitted or required in connection with undertaking the training or study, the opportunity to have contact with protected adults,
is to be treated as a regulated role with adults for the purposes of sub-paragraph (1).
(4)
For the purposes of sub-paragraph (2)(a)(ii), where—
(a)
an activity is carried out outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,
(b)
the activity is carried out for—
(i)
an organisation with a place of business in Scotland, or
(ii)
a personnel supplier with a place of business in Scotland, and
(c)
the organisation's or personnel supplier's functions in relation to the carrying out of the activity by the individual are principally exercised at that place of business,
the activity is to be treated as if it were carried out in Scotland.
(5)
For the purposes of sub-paragraph (3)(b), where—
(a)
training or study is undertaken outside the United Kingdom, the Channel Islands and the Isle of Man by an individual who is ordinarily resident in the United Kingdom,
(b)
the person with principal responsibility for the provision of the training or course of study is—
(i)
an organisation with a place of business in Scotland, or
(ii)
a personnel supplier with a place of business in Scotland, and
(c)
the organisation's or personnel supplier's functions in relation to the undertaking of the training or study by the individual are principally exercised at that place of business,
the training or study is to be treated as if it were undertaken in Scotland.
Exceptions to regulated roles with adults
2
(1)
A role which would be a regulated role with adults by virtue of the carrying out of an activity mentioned in any of the paragraphs of Part 2 of this schedule is not, despite any of those provisions, a regulated role with adults if—
(a)
the activity is carried out in the course of a family relationship, or
(b)
the activity is carried out for an individual (“A”)—
(i)
in the course of a personal relationship,
(ii)
for no commercial consideration, and
(iii)
for the benefit of A, a member of A's family or A's friend.
(2)
In sub-paragraph (1)(a) a family relationship includes a relationship between two persons who—
(a)
live in the same household, and
(b)
treat each other as though they were members of the same family.
(3)
In sub-paragraph (1)(b)—
(a)
a personal relationship is a relationship between or among friends, and
(b)
“benefit” does not include commercial benefit.
(4)
For the purposes of sub-paragraphs (1)(b) and (3)(a), a friend of a member of an individual's family is to be regarded as being the individual's friend.
(5)
Ministers may prescribe circumstances in which an activity is or is not to be treated for the purposes of this paragraph as being done in the course of a family or personal relationship.
Definition of contact with protected adults
3
F350(1)
In paragraph 1(2)(b)—
“contact with protected adults”—
(a)
means, in relation to an activity, contact that is more than incidental to the carrying out of the activity, and
(b)
includes any of the following—
- (i)
physical contact with protected adults,
- (ii)
visual, written or verbal communication with protected adults,
- (iii)
exercising power or influence over protected adults,
“unsupervised contact with protected adults” means contact with protected adults in the absence of a person carrying out an activity mentioned in paragraphs 14, 14A, 14B or 18 of Part 2 of this schedule.
(2)
In paragraph 1(3)(b) “contact with protected adults”—
(a)
means, in relation to training or study, contact that is more than incidental to the undertaking of the training or study, and
F351(b)
includes any of the following—
(i)
physical contact with protected adults,
(ii)
visual, written or verbal communication with protected adults,
(iii)
exercising power or influence over protected adults.
(3)
For the purpose of paragraph (b) of the definitions of “contact with protected adults” in each of sub-paragraphs (1) and (2), “exercising power or influence over protected adults” means—
(a)
assisting, facilitating, permitting or impeding progress towards a desirable objective or outcome for a particular protected adult,
(b)
making decisions of an operational or strategic nature that could have an impact on a number of protected adults, or
(c)
persuading or putting pressure on a particular protected adult to behave or act in a certain manner for the financial gain or personal gratification of a person other than the protected adult.
PART 2Activities
Education, training and guidance
4
Teaching, instructing, training or supervising protected adults.
5
Providing advice or guidance to a protected adult in relation to education, training or employability.
Care, health and accommodation services
6
Practising as a registered medical practitioner.
F3526A.
Practising as an anaesthesia associate or physician associate pursuant to registration with the General Medical Council.
7
Practising as a registered nurse, midwife or health visitor.
F3537A.
Practising in a profession pursuant to registration with the Health and Care Professions Council.
8
Practising as a chiropractor pursuant to registration with the General Chiropractic Council.
9
Practising as a dentist F354or dental care professional pursuant to registration with the General Dental Council.
10
Practising as an F355optometrist or dispensing optician pursuant to registration with the General Optical Council.
11
Practising as an osteopath pursuant to registration with the General Osteopathic Council.
12
Practising as a pharmacist F356or pharmacy technician pursuant to registration with the General Pharmaceutical Council.
13
Being engaged in the provision of a domestic service (including cleaning, preparing food, acting as a caretaker of premises or carrying out maintenance of premises) that is provided for protected adults in a hospital, hospice, care home, day care centre or adult placement setting.
F35713A.
Carrying out an activity in a hospital, hospice, care home, day care centre or adult placement setting.
14
Being in charge of protected adults.
F35814A.
Having responsibility for the safety and welfare of a protected adult.
14B.
Having the ability to directly influence decisions about the safety and welfare of a protected adult, other than in the capacity of an elected representative or as the holder of a judicial office.
15
Being engaged by or on behalf of a protected adult to support the protected adult to live independently, including providing personal care services, food preparation or recreational services.
16
Providing support to a protected adult under a shared lives scheme.
17
18
Having the ability to directly influence the operational delivery of medical or care services for protected adults, other than in the capacity of an elected representative or as the holder of a judicial office.
Leisure activities
19
Providing cultural, leisure, social or recreational activities for protected adults.
Sports activities
20
Coaching protected adults in relation to sports or physical activity.
Religious activities
21
Providing religious activities or services for protected adults.
Miscellaneous
22
Driving or escorting protected adults in connection with transport services provided exclusively or mainly for use by protected adults.
23
Holding a position of responsibility in an organisation F361which has as one of its main purposes the provision of benefits for or to protected adults (regardless of whether the organisation has an additional purpose of providing benefits for or to another group of persons).
Interpretation
24
In this schedule—
“adult placement setting” means a residential establishment or accommodation occupied exclusively or mainly by individuals aged 18 or over which is—
(a)
provided by a council in exercise of its functions under section 59 (provision by councils of residential and other establishments) of the Social Work (Scotland) Act 1968 or section 25 (provision of care and support services by councils) of the Mental Health (Care and Treatment) (Scotland) Act 2003, or
(b)
provided or secured by a person to whom such a function is delegated by a council in pursuance of an integration scheme under section 1 or 2 (integration schemes) of the Public Bodies (Joint Working) (Scotland) Act 2014,
“care home” means accommodation occupied exclusively or mainly by individuals aged 18 or over which is provided by an organisation carrying on a care home service (within the meaning of schedule 12 of the Public Services Reform (Scotland) Act 2010),
“elected representative” means—
(a)
a member of the House of Commons,
(b)
a member of the Scottish Parliament,
“hospital” has the meaning given in section 108(1) of the National Health Service (Scotland) Act 1978,
“judicial office” means—
(a)
the office of judge of any court,
(b)
the office of member of any tribunal,
(c)
any other office, or appointment, consisting of functions of a judicial nature,
“prison” means a prison or young offenders institution that is under the general superintendence of the Scottish Ministers under the Prisons (Scotland) Act 1989 and includes any contracted out prison within the meaning of section 106(4) of the Criminal Justice and Public Order Act 1994,
“prisoner” means a person committed to prison for trial, safe custody, punishment or otherwise,
“shared lives agreement” means an agreement entered into between a person carrying on a shared lives scheme and an individual for the provision, by that individual, of personal care to a protected adult together with, where necessary, accommodation in the individual's home,
“shared lives carer” means an individual who, under the terms of a shared lives agreement, provides, or intends to provide, personal care for protected adults together with, where necessary, accommodation in the individual's home,
“shared lives scheme” means a scheme carried on (whether or not for profit) by a local authority or other person for the purposes of—
(a)
recruiting and training shared lives carers,
(b)
making arrangements for the placing of protected adults with shared lives carers, and
(c)
supporting and monitoring placements.
PART 3General
Power to amend schedule
25
Ministers may by regulations modify this schedule as they think appropriate.
26
Regulations under paragraph 25 may disapply or otherwise modify the application of sections 34 to 37 and sections 45C to 45G in relation to particular kinds of regulated roles with adults.
SCHEDULE 4Minor and consequential amendments and repeals
Teaching Council (Scotland) Act 1965 (c. 19)
F3621
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3632
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3643
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3654
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Education (Scotland) Act 1980 (c. 44)
5
The Education (Scotland) Act 1980 is amended as follows.
6
In section 98A—
(a)
in subsection (5)(a)(ii), for “disqualified from working with children” substitute “
barred from regulated work with children
”
,
(b)
““barred from regulated work with children” shall be construed in accordance with the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14);”.
7
In section 99(1A)—
(a)
in paragraph (g)(ii), for “disqualified from working with children” substitute “
barred from regulated work with children
”
,
(b)
in paragraph (h)(ii), for “disqualified from working with children” substitute “
barred from regulated work with children
”
.
8
In section 135(1)—
(a)
““barred from regulated work with children” has the meaning given by section 98A(6) of this Act;”,
(b)
the definition of “disqualified from working with children” is repealed.
Foster Children (Scotland) Act 1984 (c. 56)
9
The Foster Children (Scotland) Act 1984 is amended as follows.
10
“(3)
A person who lives in the same premises as a barred person shall not maintain a foster child.
(4)
In subsection (3) (and in section 15(2A)), “barred person” means a person who is barred from regulated work with children (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14)).”.
11
“(2A)
A person shall not be guilty of an offence under subsection (1)(c) above in relation to a contravention of section 7(3) if the person proves that he did not know, and had no reasonable ground for believing, that any other person living in the premises in which the person lives was a barred person.”.
12
““barred person” has the meaning given by section 7(4);”.
Criminal Procedure (Scotland) Act 1995 (c. 46)
13
The 1995 Act is amended as follows.
14
In section 106(1)—
(a)
paragraphs (db) and (dc) are repealed,
(b)
in paragraph (f), sub-paragraphs (ii) and (iii) are repealed.
15
In section 110(1)(a), the words “, the proposal to make a reference was made” are repealed.
16
Section 111(3) is repealed.
17
“(2)
A person who has appealed against both conviction and sentence (or, as the case may be, against both conviction and a decision mentioned in section 106(1)(bb) or both conviction and disposal and order) may abandon the appeal in so far as it is against conviction and may proceed with it against sentence (or, as the case may be, decision, disposal or order) alone.”.
18
In section 118—
(a)
in subsection (4), for the words “106(1)(ba), (bb), (c), (d), (da), (dc), (e) or (f)” substitute “
106(1)(ba), (bb), (c), (d), (da), (e) or (f)
”
,
(b)
subsection (4AA) is repealed,
(c)
in subsection (7)—
(i)
the words “or, as the case may be,” at the end of paragraph (a), and
(ii)
paragraph (b),
are repealed.
19
In section 121A(1), the words “(other than an appeal under section 106(1)(db) or (dc))” are repealed.
20
In section 173(2), the words “or (cb)” are repealed.
21
In section 175—
(a)
in subsection (2)—
(i)
paragraph (cb)(but not the word “or” which appears immediately after that paragraph) is repealed,
(ii)
in paragraph (d), sub-paragraphs (ii) and (iii) are repealed,
(b)
in subsection (8), for the words from “under” to the end of paragraph (c) substitute “
against both conviction and sentence may abandon the appeal in so far as it is against conviction and may proceed with it against sentence alone,
”
,
(c)
in subsection (9), the words “or (cb)” are repealed.
22
Section 181(4) is repealed.
23
In section 186—
(a)
the words “or (cb)”, where they appear in subsections (1), (2), (9) and (10), are repealed,
(b)
in subsection (2)(a)—
(i)
at the end of sub-paragraph (i) insert “
or
”
,
(ii)
sub-paragraph (iii)(and the word “or” which immediately precedes it) are repealed.
24
In section 187(1), the words “or (cb)” are repealed.
25
In section 189—
(a)
subsection (2A) is repealed,
(b)
in subsection (7)(b)—
(i)
the words “or, as the case may be,” at the end of paragraph (a), and
(ii)
paragraph (b),
are repealed.
26
In section 193A(1), the words “(other than by way of an appeal under section 175(2)(cb) of this Act against a reference only)” are repealed.
Police Act 1997 (c. 50)
27
Part 5 of the 1997 Act is amended as follows.
28
“(5A)
The Scottish Ministers need not issue a criminal record certificate under subsection (1) if the statement accompanying the application states that the purpose for which the certificate is required is the purpose mentioned in disclosure condition C (set out in section 55 of the Protection of Vulnerable Groups (Scotland) Act 2007) (asp 14)).”.
29
“113CASuitability information relating to children
(1)
In such cases as are prescribed, an enhanced criminal record certificate must also include suitability information relating to children.
(2)
Suitability information relating to children is—
(a)
whether the applicant is barred from regulated work with children;
(b)
if the applicant is barred from such activity, such details as are prescribed of the circumstances in which the applicant became barred;
(c)
whether the Scottish Ministers are considering whether to list the individual in the children's list;
(d)
whether the Independent Barring Board is considering whether to include the applicant in the children's barred list in pursuance of paragraph 3 or 5 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.
113CBSuitability information relating to protected adults
(1)
In such cases as are prescribed, an enhanced criminal record certificate must also include suitability information relating to protected adults.
(2)
Suitability information relating to protected adults is—
(a)
whether the applicant is barred from regulated work with adults;
(b)
if the applicant is barred from such activity, such details as are prescribed of the circumstances in which the applicant became barred;
(c)
whether the Scottish Ministers are considering whether to list the individual in the adults' list;
(d)
whether the Independent Barring Board is considering whether to include the applicant in the adults' barred list in pursuance of paragraph 9 or 11 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006.
113CCSuitability information: supplementary
(1)
The Scottish Ministers may by order made by statutory instrument—
(a)
amend section 113CA for the purpose of altering the meaning of suitability information relating to children;
(b)
amend section 113CB for the purpose of altering the meaning of suitability information relating to protected adults.
(2)
Such an order is subject to annulment in pursuance of a resolution of the Scottish Parliament.
(3)
Expressions used in sections 113CA and 113CB and in the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14) have the same meaning in those sections as in that Act, except that “prescribed” must be construed in accordance with section 125 of this Act.”.
30
Sections 113C to 113F are repealed.
31
In section 114—
(a)
in subsection (2), for “a Minister of the Crown” substitute “
a person mentioned in subsection (2A)
”
,
(b)
“(2A)
Any of the following persons may make a statement for the purposes of subsection (2)—
(a)
a Minister of the Crown;
(b)
a member of the Scottish Executive;
(c)
any other office-holder in the Scottish Administration; or
(d)
a nominee of any person mentioned in paragraphs (a) to (c).”,
(c)
in subsection (3), for “Sections 113A(3) to (6) and 113C to 113F” substitute “
Section 113A(3) to (6)
”
.
32
In section 116—
(a)
in subsection (2), for “a Minister of the Crown, or a person nominated by a Minister of the Crown,” substitute “
a person mentioned in subsection (2A)
”
,
(b)
“(2A)
Any of the following persons may make a statement for the purposes of subsection (2)—
(a)
a Minister of the Crown;
(b)
a member of the Scottish Executive;
(c)
any other office-holder in the Scottish Administration; or
(d)
a nominee of any person mentioned in paragraphs (a) to (c).”,
(c)
in subsection (3), for “113C to 113F” substitute “
113CA to 113CC
”
.
33
“(3)
An application under this section may, in particular, request a review of any information contained in a certificate by virtue of section 113B(4).
(4)
The Scottish Ministers, on receiving such a request, must ask the chief officer of the relevant police force who provided that information to reconsider whether the chief officer still thinks that the information concerned might be relevant for the purpose in respect of which it was requested.”.
34
In section 118—
(a)
in subsection (2A)(a), for “United Kingdom Passport Agency” substitute “
Identity and Passport Service
”
,
(b)
“(2B)
The Scottish Ministers may require an applicant to have fingerprints taken under subsection (2) only if they are not satisfied by other evidence provided under subsection (1) as to the applicant's identity.”,
(c)
“(3)
The Scottish Ministers must arrange the destruction of any fingerprints taken in pursuance of subsection (2) as soon as reasonably practicable after they have been used for the purpose mentioned in subsection (1).”.
35
In section 119A(2), the words from “; and” to the end of the subsection are repealed.
36
“—
“(i)
countersign applications under section 113A or 113B; or
(ii)
make declarations in relation to disclosure requests made under section 52 or 53 of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14),”.
37
In section 120A—
(a)
in subsection (3)(b), for “included in any list mentioned in section 113C(3) or 113D(3)” substitute “
barred from regulated work with children or adults (within the meaning of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14))
”
,
(b)
in subsection (4)(b)(iii), after “applications” insert “
, or the making of declarations,
”
.
38
Section 121 is repealed.
39
In section 122—
(a)
in subsection (3)—
(i)
after “113B” insert “
, or make a disclosure under section 52 or 53 of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14),
”
,
(ii)
after “application” insert “
or, as the case may be, made the declaration in relation to the disclosure request
”
,
(iii)
after “countersigned”, where it appears in paragraph (b), insert “
or, as the case may be, made the declaration
”
,
(b)
in subsection (4)(b)—
(i)
the words after “person” become sub-paragraph (i), and
(ii)
“; or
(ii)
has made or is likely to make a declaration in relation to a disclosure request made under section 52 or 53 of the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14)”.
40
“122BDelegation of functions of Scottish Ministers
(1)
The Scottish 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)
relating to the publishing or revising of a code of practice;
(c)
relating to the laying of a code of practice before the Scottish Parliament;
(d)
relating to the determination of an appropriate fee under section 113B(5A) or 119(3); or
(e)
under section 125A.
(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 119.”.
41
““office-holder in the Scottish Administration” has the same meaning as in the Scotland Act 1998 (c. 46);”.
Protection of Children (Scotland) Act 2003 (asp 5)
42
The whole Act (other than sections 13 and 16) is repealed.
Criminal Procedure (Amendment) (Scotland) Act 2004 (asp 5)
43
Section 24(1) of the Criminal Procedure (Amendment) (Scotland) Act 2004 is repealed.
Charities and Trustee Investment (Scotland) Act 2005 (asp 10)
44
Paragraph 15 of schedule 4 to the Charities and Trustee Investment (Scotland) Act 2005 is repealed.
Inquiries Act 2005 (c. 12)
45
Part 2 of Schedule 2 to the Inquiries Act 2005 is repealed.
Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10)
46
The following provisions of the Police, Public Order and Criminal Justice (Scotland) Act 2006 are repealed—
(a)
section 3(2)(d),
(b)
section 3(8), and
(c)
paragraph 14(2) of schedule 1.
SCHEDULE 5Index
Expression | Interpretation provision |
|---|---|
the 1995 Act | section 97(1) |
the 1997 Act | section 97(1) |
the 2001 Act | section 97(1) |
the adults' list | section 1(1)(b) |
F366barred from regulated roles | section 92 |
care service | section 97(1) |
charity | section 97(1) |
charity trustees | section 97(1) |
chief constable | section 97(1) |
chief officer of a relevant police force | section 97(5) |
child | section 97(1) |
the children's list | section 1(1)(a) |
community care service | section 94(4) |
competent application for removal from the list | section 25(3) |
conduct | section 97(1) |
F367confirmation of scheme membership | section 46(2) |
F368conviction, convicted (other than in section 14) | section 97(1) |
council | section 97(1) |
direct payment | section 94(4) |
disciplinary proceedings | section 97(1) |
F369Disclosure and Barring Service, DBS | section 97(1) |
F370. . . | F370. . . |
F370. . . | F370. . . |
F370. . . | F370. . . |
F370. . . | F370. . . |
F370. . . | F370. . . |
employment (and related words) | section 97(1) |
employment agency | section 97(1) |
employment business | section 97(1) |
exempted question | section 68(5) |
foster carer | section 96(1) |
harm | section 93(1) |
Health Board | section 97(1) |
Her Majesty's Inspectors of Schools | section 97(1) |
F371. . . | F371. . . |
legal proceedings | section 97(1) |
listed, listing (and related words) | section 1 |
Ministers | section 97(1) |
new vetting information | section 47(4) |
organisation | section 97(1) |
permitted purpose | section 67(3) |
personal data holder | section 64(2) |
personnel supplier | section 97(1) |
placed at risk of harm | section 93(2) |
police authority | section 97(1) |
police force | section 97(1) |
prescribed | section 97(1) |
protected adult | section 94 |
referral ground | section 2 |
registrar of dentists and dental care professionals | section 97(1) |
Registrar of health professionals | section 97(1) |
Registrar of nurses and midwives | section 97(1) |
F372registrar of pharmacists | section 97(1) |
F373regulated role | section 91(1) |
F374regulated role with adults | section 91(3) |
F375regulated role with children | section 91(2) |
relevant finding of fact | section 17(5) |
relevant functions | section 8(3) |
relevant inquiry | section 31(2) |
relevant inquiry report | section 31(3) |
relevant offence | section 32 |
relevant police force | section 97(5) |
relevant regulatory body | section 30(7) |
Scheme | section 44 |
scheme member | F376section 45(1)(a) |
scheme record | section 48 |
school | section 97(1) |
F370. . . | F370. . . |
F377. . . | F377. . . |
Special Health Board | section 97(1) |
staff transfer order | section 86(1) |
F378. . . | F378. . . |
F367type of regulated role | section 91(5) |
F378. . . | F378. . . |
vetting information | section 49(1) |
F378. . . | F378. . . |